Do all Estates have to go through probate in Florida?

Simple answer: No, not all Estates have to go through probate in Florida. However, the real question is whether all assets have to go through probate in Florida. And, the answer is no.

Unfortunately, answering this question requires an analysis of each estate. Below you will find some of the steps that I go through in order to determine whether or not the client needs an estate to be probated.

To really get at the root of this question you have to look at how things get done with the estate’s assets. For example, when your mother or father passes away, how do you get access to the funds in the bank account? How do you get title to their house? Generally speaking, there are only three ways to transfer assets in Florida.

Joint Ownership with Right of Survivorship

Now let’s talk about the first way to transfer assets in Florida – Joint ownership with right of survivorship (“JOWRS”). JOWRS is a concept or a legal construct that allows multiple people to own an item, real estate, bank accounts, vehicles etc.… Depending on the relationship of the parties and the language on the title, the asset may pass or transfer to the joint owner immediately upon death without the need for a probate.

To determine whether this applies, you have to look at the actual title to the asset. For example in the instance of the piece of real estate you need to look at the deed (quitclaim deed, warranty deed, life estate deed). For a non-married joint ownership, you must have language contained in the deed that says, or something substantially similar to, “joint ownership with right of survivorship.” If you see this language, then likely no probate is needed for this property.

When property is bought by a married couple, the analysis gets easier. Florida law provides a presumption of “with right of survivorship” when the properties acquired by a husband and wife jointly (and they have remained married). This is actually referred to as tenants by the entireties, but don’t get caught up in the legal mumbo-jumbo. So, when you’re looking at the deed and the Grantee is “John and Jane Smith, husband and wife,” probate is likely unnecessary.

Therefore, if the only remaining assets was this piece of real estate where JOWRS is present, no probate would be necessary at all, and this is an an example of when not all states have to go through probate.

Beneficiary Designations and Agreements

Now let’s talk about the second way to transfer assets in Florida. The second main way to transfer assets in Florida is by agreement.

Agreements come in different types and forms. For example, beneficiary designations on bank accounts are essentially agreements with your financial institution that says: “upon my death, cut a check to “X.”

Other common examples are life insurance policies and annuities. Both of these are simply agreements with financial institutions for them to make a payment upon your death. When you have this type of agreement in place, your Bank will dispose of that account to the intended beneficiary immediately upon your death. You do not need to seek the authority or the permission of anybody else to gain access to those funds. Therefore, no court approval or probate is needed to distribute those assets in the bank account to the intended beneficiary.

So, if the decedent only had a bank account in which their beneficiaries were designated, more than likely no probate is needed for that estate.

Probate

Now let’s talk about the third way to transfer assets in Florida. If you do not have joint ownership or an agreement, then unfortunately you are going to have to seek authority to transfer those assets.

The only entity that has the power to authorize you to transfer someone else’s assets is a judge. The court process of determining who is the rightful heir, determining who the creditors are, and determining how these assets need to be distributed is probate. There are many steps to a probate, including but to limited to:  addressing creditors, selling real estate, distributing assets, and liquidating assets.  However the heart of the probate is seeking authorization to handle a decedent’s assets and personal property.

Let’s go through an example. If ta person has a bank account, and if there are no beneficiary designated nor is there an agreement between the decedent and the financial institution, then when that person passes away, the financial institution does not know how to distribute the money in that account.

Think of it from the financial institution’s perspective. The financial institution has an account with $10,000 of the decedent’s money in it, but they don’t know who rightfully gets that money. What if they give it to the wrong person? Is the Bank liable to the rightful heir?

Therefore, in many cases such as this, you’ll hear the bank for the financial institution say we need “an order from the court” or “letters of administration/testamentary”. Essentially, the bank is saying go to court and get a permission for us to distribute at the decedent’s assets.

Conclusion:

I hope this article has answered your questions. If not feel free to contact us, and we will be happy to discuss the matter and provide a free initial consultation. There are a few different types of probates, but really they boil down to two main types: a summary administration or a formal administration. I will talk about both of these types of probate in future posts but for now just understand that unless there is joint ownership with rights of survivorship or an agreement governing in asset, then more than likely a probate will be necessary.