Certain assets in Florida are probatable but can nevertheless be deemed exempt from probate, as outlined in Chapter 732 of the Florida Statutes, and some assets typically avoid probate altogether (non-probate assets). Here are a few critical types of assets that will often not need to be probated or will be considered "exempt" from administration:
Joint Ownership with Rights of Survivorship: Property owned as joint tenants with rights of survivorship passes directly to the surviving owner or owners upon death of one or more of the cotenants (the other individuals on title) without the need to go through probate.
Retirement Accounts and Life Insurance Policies: As per Florida Statutes § 732.402, assets with designated beneficiaries, such as life insurance policies or retirement accounts, bypass probate and directly pass to the named beneficiaries (non-probate assets). However, these same assets when there is no designated beneficiary named, the beneficiary disclaims, or when the beneficiary pre-deceases the account holder, this type of property will need to be probated.
Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Bank or brokerage accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation will pass directly to the named beneficiary without probate (Florida Statutes § 655.82 for POD and § 711.50 et seq. for TOD). Again, this assumes that the beneficiary is ready and willing to take the property; if not, these accounts must be probated.
Living Trusts: Most of the time, assets held in a revocable living trust do not need to go through probate (Florida Statutes Chapter 736). Instead, the trustee distributes them as per the trust's terms.
Homestead Property: Under the Florida Constitution, Chapter X, Section 4, the homestead exemption may protect a primary residence from probate and unsecured creditor attachment, passing it directly to the surviving spouse or descendants, provided certain conditions are met. However, most of the time the Constitutional Homestead succession must still be recognized by a probate court through an Order Determining Homestead. When this is issued, it works retroactively to acknowledge that the Homestead property passed to the named heirs as of the date of the passing of the property owner.
Remainder Designations & the Enhanced Life Estate: Property devised to named remainders often pass outside of probate when a properly drafted, executed, and recorded enhanced life estate deed (also known as the Ladybird Deed) has been used in estate planning.
As for small estates, if the decedent's personal property value does not exceed the total value of funeral expenses plus necessary medical expenses incurred in the last 60 days of illness, it can bypass formal probate under Florida Statutes § 735.301.
Formal probate would typically be required for estates worth $75,000 or more (excluding the homestead property), and those estates between may be administered through summary administration, a shortened version of probate for qualifying estates.
While these provisions can help some assets avoid probate, the probate process in Florida can still be complex, and navigating the legal landscape, understanding which assets are exempt, interpreting statutes, and ensuring correct implementation of the laws requires expertise.
A probate attorney can provide invaluable guidance throughout the process, ensuring compliance with all legal requirements, avoiding costly mistakes, and ensuring the efficient and proper closure of the estate, and can handle the complex legal paperwork, negotiate with creditors, resolve disputes among beneficiaries, and represent the estate in court, if necessary.
Published: Jul 13, 2023
Updated: Jul 13, 2023
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