Probate is a court process that is required when a person dies owning assets in the decedent’s own name and with no designated beneficiaries to receive the assets. It can be required if the deceased person left a will, and it can be necessary if the deceased did not leave a will. It can be applicable to some of a deceased person’s property, even though it may not apply to other assets.
Thus, whether probate is required depends upon how assets are held. For example, a deceased person could have a bank account payable on death (POD) to the person’s children, a bank account owned jointly (two names with OR between them), and a home in the person’s own name. The account that is POD would not require probate because it passes automatically to the beneficiaries; the other account does not require probate because it is owned jointly, with right of survivorship; the home requires probate because it does not pass automatically. It remains in the name of the deceased person until a court order is issued to distribute it.
When an institution (like a bank or brokerage firm) holds an asset owned in individual name, the institution is unable to change the name to heirs or beneficiaries until the required court documents are issued. Sometimes when people talk to the institution, they receive incorrect information. Sometimes, they are told that something is required, which actually is not required. If an asset is payable on death (POD), transfer on death (TOD) or owned with a right of survivorship, the only thing that should be required is a certified death certificate. Probate is not required. But, if it does not have a beneficiary designation or joint ownership with right of survivorship, probate would be required. If the institution uses the expression “letters of administration,” “letters testamentary” or similar term, that would indicate that probate is required.
To open probate, a petition is filed with the probate court. If the deceased left a will, the court determines that it is valid (executed in accordance with law), and “admits” it to probate. Whether or not there is a will, the court appoints a person as the personal representative, in other states often called an executor. The document that appoints the personal representative in Florida, and gives him or her the authority to administer the estate, is called “letters of administration.”
If a person dies owning the primary residence in the deceased person’s name alone, and the residence will pass to the person’s heirs, an additional step beyond basic probate is required. Homestead (the word does not just refer to the tax exemption) passes in a rather unusual and complex way in Florida. Homestead vests in heirs at law free of the claims of creditors, but a probate court order is required to show how it has passed. Consequently, if there is a home, an additional process is required.
If a person dies owning real property jointly with a spouse or another person (with a right of survivorship) certain documentation must be recorded in the public records of the county so that the title to the property is clear in the records. We prepare and record such documents as a separate service.
Probate administration requires a Probate Lawyer. If you believe probate is or might be required, contact Pyle, Dellinger & Duz PLLC, your local, probate attorney, for additional information.
Trust Administration is a non-judicial process that is required after a person who created a revocable trust has died. One reason that people create trusts is to avoid probate. In the past, the law did not require any significant process as to a trust after death. But Florida Statutes now require a process, which can be simple or complex.
Funding a trust means placing all assets into the name of the trust, or naming the trust as beneficiary of assets. If an asset is not in trust, or does not pass automatically to the trust or other persons, probate could be required as to that asset. Probate only involves particular assets.
Florida law indicates that a trustee of a revocable trust must file a Notice of Trust with the court, file a document with beneficiaries to accept the duties of trustee, provide beneficiaries a copy of the trust, provided beneficiaries an inventory of the assets, and provide interim and final accountings to the beneficiaries. This may seem like the same requirements as would be necessary with a probate, and in fact they are quite similar. But trust administration does not require court involvement.
If the beneficiaries are all in agreement, they can waive some or all of the statutory requirements of trust administration. A few items still are required, and the trustee should receive written waivers in order to avoid potential liability.
Certain documents may be required in order to prove to institutions that hold assets as to the power and authority of the successor trustee. We prepare a form that provides that information.
If a person dies owning real property in a revocable trust, or designated to be distributed to or through a revocable trust, certain documentation must be recorded in the public records of the county so that the title to the property is clear in the records. We prepare and record such documents as a separate service.