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Probate Property

When someone dies, the property they left is called their estate. The decedent’s estate must be settled and passed on to others. It is not as simple as the decedent’s spouse, children, or other relatives deciding who should get what. It is also not as simple as following the instructions in the decedent’s will, if he (or she) left one. Before a decedent’s assets can be distributed to the appropriate people as required by the Florida Probate Code, the estate must go through a process called probate. Probate is the process during which the will is validated, a personal representative is appointed, the affairs of the decedent are settled, and the assets in the estate are distributed to the decedent’s beneficiaries or heirs. A significant drawback of probate is that it can take a long time. In Florida probate typically takes up to 12 months. It can take longer if the estate has complex assets or if there are complications such as estate litigation. However, not all of the decedent’s property will necessarily be subject to probate. Only assets that are part of the decedent’s probate estate are subject to the probate process. If you are wondering which property in your estate is considered probate property and must go through the probate process, discuss your concerns with a Fort Lauderdale probate property lawyer who will explain to you what property is included and your probate estate, and who can help you minimize the impact probate will have the distribution of the property.

Probate Assets

Property that is subject to probate cannot be distributed to beneficiaries or heirs until the end of probate. This means that the personal representative must first pay all estate debt and expenses before assets distribution. This also means that beneficiaries or heirs that may be relying on assets from your estate may be required to wait for a year or more to receive the property that you left them. On the other hand, property that is not part of the probate estate typically will pass to beneficiaries fairly quickly after the decedent’s death.

  • Real estate . Some real estate is probate property. It depends on how it is titled. Real estate solely owned by the decedent is probate property. The decedent’s interest in real estate owned as a tenant in common is also probate property. On the other hand, real estate co-owned with one or more people as joint tenants with survivorship rights would not be part of the decedent’s probate estate.
  • Personal property . Personal property is typically always probate property. Personal is defined as any property that is not real property. It includes jewelry, appliances, books, computers and other electronics, animals, tools, artwork, collectibles, clothing, home furnishings, and vehicles.
  • Financial accounts . Financial accounts include banks accounts and investment accounts. If the account is in the name of the decedent only, it may be probate property. However, if the account also has a payable on death or transfer on death designation, it is not probate property. If the account is a joint account, it is not probate property.
  • Benefits . Benefits such as Social Security, Railroad Retirement, and Veterans Administration Benefits are part of the decedent’s probate estate.
Property That is not Part of Your Probate Estate

Generally speaking, as a probate property lawyer in Fort Lauderdale will explain, property which has a designated beneficiary and property that you own as a joint tenant with someone are not subject to probate.

  • Joint tenancy . Both real and personal property held in joint tenancy, tenancy by the entirety is not probate property. It passes to the other owners by operation of law.
  • Life insurance. Proceeds of a life insurance policy payable to a named beneficiary and not the decedent’s estate is not probate property.
  • POD or TOD bank accounts. Money or securities in a financial account with a POD or TOD designation becomes the property of the designated beneficiary without having to go through probate.
  • Trust property. As a Fort Lauderdale probate attorney can explain, real and personal property transferred to an inter vivos trust prior to the settlor’s death would not be probate property.
  • Retirement accounts. Retirement accounts such as IRAs, ESOPS, profit-sharing plans, group life insurance, and 401(k) plans have designated beneficiaries are not probate assets.
Avoiding Probate

In Florida formal probate is required for estates with assets valued more than $75,000 . Summary administration is required for smaller estates. There are, however, strategies to help minimize the amount of your estate that is subject to probate. For example, transferring title to property to a property set up trust during your lifetime.

Contact the Law Offices of Stephen Bilkis & Associates

Probate can be a long, costly process. In Florida it commonly takes up to a year, but can take longer if circumstances require the personal representative to request an extension. If you have questions about how probate works, what property is in your probate estate, or strategies to minimize the impact of probate on the transfer of assets, the experienced probate property attorneys serving Fort Lauderdale at the Law Offices of Stephen Bilkis & Associates have the skill and resources to help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.

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