The word probate means to prove. In Florida, probate court is where certain matters pertaining to a deceased person’s estate are proved in a judicial proceeding. Basically, probate is the court’s way of making sure a person’s wishes are honored.
The basic goal is to pass clear title to assets on to the rightful beneficiaries. Assets that are the subject to the process are known as probate assets. These assets pass either subject to a Last Will and Testament or without a Will. Dying with a Will is called Atestate. Dying without a Will is called Intestate.
Non-probate assets pass outside of probate. Examples of non-probate assets are:
IRA’s that designate beneficiaries,
Life insurance policies that name beneficiaries,
Assets in a trust that designates a beneficiary, and
Accounts set up with a joint tenancy with right of survivorship provision
Typically, in a testate estate (with a Will) the Will names a Personal Representative to identify and collect the assets, pay the decedent’s debts and expenses, and distribute the remaining assets to the named beneficiaries. Through the Will, trusts can be created for minors and other beneficiaries who need protection.
If the person died Intestate (no Will,) the State of Florida determines who will be the beneficiaries or heirs. Heirs are the spouse (if one) and children. If there are no children or grandchildren, then it would be other close relatives. Passage of assets in accordance with these laws may or may not be the way a deceased wanted the assets to pass. In any event the intestate estate will have to be administered through the court probate process.
Probate can be a fairly short process most of the time. While probate in Florida requires paper work and court involvement, it can be a relatively simple process and has many advantages. Probates that are lengthy and time consuming are so because of poor planning, beneficiary disagreements, or unusual ownership circumstances.
The amount that a person can distribute without paying estate tax has changed once again. Here are the amounts for the last several years. The tax is determined by the year in which an individual dies.
2006-2008 – $2,000,000
2009 – $3,500,000
2010 – no estate tax
2011-Present – $5,000,000
Clearly the estate tax area is a confusing and unsettled area of law. We were at the door of 2011, anticipating the estate tax limit to drop to $1,000,000 when our legislators addressed it in December of 2010. Tax issues can be quite complicated, any person who has concerns should address them to a qualified attorney.