III                 Is Probate necessary?

You should consult with a Probate/Estate Attorney before electing what is best for you, the heirs and the estate.

In Florida, not all Estates need to go through Probate.  Review of the Will (Testate), decedent’s Assets, how they are owned (titled) and if Beneficiaries were named will determine if the Estate must go through Probate. 

If there is No Will (Intestate), then Probate is required.

There are many reasons for probate to be necessary, but some of the most important are:

• Transferring the legal title / ownership of the decedent’s property and assets to the heirs and/or beneficiaries.  If there is no property to transfer, there is usually no need for probate.

• 2.)Only the Husband, OR Wife, is named on the deed: Deeds titled with only the husband, or with only the Wife, and one survives the other not on title—probate is usually required. There are also major implications with the title of real estate if this occurs (spousal elections).
• 3.)TENANTS IN COMMON: -see XV Title held to Real Property

• The collection of any taxes due to various taxing authorities that may be owed by the decedent or his/her estate at the time of death or taxes that become due when a property is transferred.
• As stated above, probate also provides a legally mandated deadline for creditors to file claims against the estate. This prevents old or unpaid creditors from future claims against the heirs or beneficiaries.
• If the deceased owned real estate in his own name, no one could properly accept title to that property nor would a bank give a mortgage to a new buyer mortgage unless the estate went through probate and a “clear title” could be given the new buyer.
• Generally, no one would enter into any other transactions involving the deceased’s property until the will has been filed for probate and someone has been legally appointed to act for the estate.
• Finally, it provides a legal method for the actual physical distribution of the remainder of the estate’s property to the heirs and beneficiaries.

Asset may avoid Probate in Florida based on the following: 

• PR is the only heir/beneficiary and there are no debts
• Estate value is less than $75,000. –see XV Glossary: Administration
• Holding title to Real Estate, bank accounts, Vehicles may not need to be included in Probate if:
  • Joint Tenants with Rights of Survivorship (JTWROS) –see XV Title held to Real Property
  • Tenants by the Entirety: -see XV Title held to Real Property
  • Lady Bird Deed;–see XV Glossary: Title Held to Real Property.
  • Trusts: Property titled in a Trust (Land Trust, Irrevocable Trust), usually avoids probate.  (Trust Administration issues may exist).–see XV Glossary Trust