Probate/Estate | Tom McClellan | BHHS Florida Realty
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Tom McClellan

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Cell: (941) 720-1500
Office: (941) 720-1500
TomMcclellan@yahoo.com
 

X                          What Assets are Probated and What Assets are not?

 

Probate administration applies only to probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be probate assets may include:

  • A bank account or investment account in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death (POD) to another or held jointly with rights of survivorship with another, may not be a probate asset.
  • A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
  • Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is a probate asset (unless it is homestead property or title held joint tenancy with rights of survivorship). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.  Also, property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.
  • A living trust that holds title to a property held in trust also passes that property to the heirs or beneficiaries without probate.Such trust is a legal entity which survives after the death of the person who created it.

This list is not exclusive but is intended to be illustrative.

A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.

Real Estate ownership title held:

  • Holding title to Real Estate deed, bank accounts, Vehicles:
    • Joint Tenants with Rights of Survivorship where only 1 spouse dies, passes to the surviving co-owner(s) without a requirement for probate.If not a spouse, depending on the relationship of another 3rd party (beneficiary) and the language on the title (joint ownership with the right of survivorship) it can still transfer immediately upon death without probate.
    • Tenants by the Entirety where only 1 spouse dies.Property is acquired by husband and wife and remained married, Florida law provides a presumption of(with right of survivorship
    • JOWRSJoint ownership with Right of Survivorship
    • Lady Bird Deed–see XV Glossary: Title Held to Real Property
  • Real Estate held in Trust:
  • Real Estate under Florida Homestead Law: