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Florida Estate Planning Basics: Probate

Probate is a very important concept in estate planning and elder law. Thinking about and planning around probate is one of the main things that estate planning can help with. Whether you are the executor of someone else’s will and need to understand probate from that perspective, or you are planning your own estate, having some familiarity with probate is crucial. This article is an overview of some of the concepts, terms and key players during the probate process.

What is Probate?

When we hear people talk about probate it is usually either about frustration with the probate process, or trying to figure out how to get around probate. Probate can be time consuming and come with fees for professionals and administrators, so many people like to avoid it whenever possible. However, probate does have an important purpose.

Probate is the way that someone’s finances get wrapped up after their death. The probate process consists of taking the assets that the deceased owned and paying off debts, taxes, and fees. Then, the remainder of the estate gets distributed to beneficiaries either through a will or through Florida law governing what happens to someone’s assets if they do not have a will, otherwise known as being “intestate”.

Probate can be informal or formal. There is also a kind of probate called “Disposition of Personal Property Without Administration,” however this is only available in certain circumstances. This article will discuss formal probate because that is the most complicated. However, it is important to check with a skilled probate attorney to find out if you qualify for the simpler kinds of probate.

What Assets are Part of the Probate Process?

Probate only applies to certain assets that a decedent has at the time of his or her death. Probate assets are things that the decedent has that are owned solely by the decedent, or that have no defined beneficiary other than the estate at the time of death. For example, a bank account that is only in the name of the decedent is a probate asset. However, a life insurance policy with a named beneficiary is not a probate asset. A more complicated example is a house that is owned by a couple with rights of survivorship; this is not a probate asset after the first person dies, but will be after the second person dies if no one has a right of survivorship at that time, assuming that the house is not part of a trust.

Basically, anything that goes to the estate and needs the will or intestacy laws to govern its passage is generally considered a probate asset.

Purpose of Probate

Probate helps to make sure that legal ownership of the decedent’s assets passes lawfully. For example, say that your grandmother dies and leaves you her car in her will. There needs to be a legal process where you can take ownership of the car. You cannot just walk into the DMV and get the title changed without a legal process. Probate also makes sure that creditors are paid and gives creditors a timeline so that they cannot come after a decedent’s assets after the process in finalized.

The Villages Probate Attorneys

If you are tasked with probating a will, you should have an experienced probate attorney to help you. The skilled estate planning attorneys at the Millhorn Elder Law Planning Group in the Villages can help you through the long and difficult probate process.

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