Don’t Fall Down the Rabbit Hole: Navigate Probate Now
Probate can be tricky, and can sometimes feel more like a con than a pro. For individuals and families hoping to preserve their estates and facilitate the grieving process, informing oneself on probate, statutory exemptions, and the different kinds of probate can make the world of a difference. Read on to better understand what probate entails, the exemptions to probate, and how to best navigate probate depending on your specific case.
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What is probate??
In probate, the court oversees the distribution of a deceased person's assets and estate. The administration of assets occurs according to the Will if one exists, or according to state law. Here in Florida, Chapters 731, 732, 733, 734, and 735 of the Florida Statutes govern the “administration of estates” and are known as the probate rules. Probate applies to both domiciliary (residential) and ancillary (non-residential) estates and can be either testate or intestate. Testate administration refers to the distribution of assets according to a decedent’s valid Will. Intestate administration refers to the distribution of assets without a Will, according to statutory procedure.
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What is a Will??
An existing Will can be self-proved by having a notary public undergo a self-proof affidavit to demonstrate that they witnessed the decedent, also known as the testator, sign the Will. The notary public must also have seen the witnesses sign the document in front of each other. If the notary was not present for the signing, the testator may have verbally told the notary that they signed the Will, and there must be affidavits of the witnesses accordingly. If neither scenario applies, the process of proving the Will can be much more complex and can require sworn statements or testimony by at least one witness [1].
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Exemptions to probate??
Estate planning can be confusing, but being informed can help you escape the rabbit hole of probate. Implement an estate plan that can best manage your existing assets in order to minimize the strain. Homestead property is one exemption from probate and refers to real or personal property used as a primary residence by its owner or a dependent of the owner [2]. In Florida, owning a homestead property entitles the owner to a series of benefits, including a tax exemption up to the value of $25,000 on the residence and contiguous real property [3]. Homestead property constitutes a protected asset and shields the owner from liability to an extent. As a result, homestead property undergoes a separate process for distribution outside of probate. As seen in Fla. Const. Art. X, § 4, the homestead exemption essentially protects your homestead from court interference and ensures that your living relatives will receive the property.
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What constitutes a homestead property in Florida?
A property must meet one of two requirements to qualify as a homestead property: a property under one hundred sixty acres of contiguous land or under one-half acre of contiguous land if located within a municipality, or personal property to the value of one thousand dollars. A surviving spouse or heirs of the deceased owner directly inherit both of these exemptions outside of probate [4].
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Are there other exemptions to probate??
Fla. Stat. § 732.402 also outlines the different kinds of properties that heirs and spouses can inherit outside of probate in addition to homestead property. Exempt property includes household furnishings with value up to $20,000, two regularly used motor vehicles up to 15,000 pounds held in the decedent's name, qualified tuition programs (Florida Prepaid) under the s. 529 of the Internal Revenue Code of 1986, and all benefits paid pursuant to s. 112.1915 [5].
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What are the different types of probate?
In Florida, probate can occur in three different ways: Summary Estate Administration, Formal Estate Administration, and Ancillary Estate Administration. There is no set path, but having an informed background on the different processes of probate can be the key to your “Emerald City.” Summary Estate Administration refers to a quicker and cheaper process of administering the decedent’s assets due to an estate smaller in value. Formal Administration refers to a lengthier and more complex administration of assets due to a larger estate that requires the appointment of a personal representative. Ancillary estate administration refers to the distribution of assets when a Florida non-resident dies with a testate estate in Florida not exceeding $50,000 [6].
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What is Summary Estate Administration??
As outlined in Fla. Stat. § 735.201, in Summary Estate Administration the estate could have belonged to either a Florida resident or non-resident, and must meet at least one of the following conditions: (1) If the estate qualifies as testate (will Will) and the Will does not directly administer the assets as required by chapter 733, or (2) if the net value of the estate does not exceed $75,000 or the decedent has been dead for over two years [7]. The net value refers to the value of the estate not including the assets that fall under the probate exemption statute. In summary administration, a personal representative nominated in the Will or a beneficiary of the estate can petition the court to distribute the assets, known as the petitioner of the Summary Estate Administration. If approved, the court will release an order which lists the assets of the estate and their corresponding beneficiaries. This petitioner handles the administration of the estate, and the court provides the institution that holds the assets of the decedent with the court order that mandates the transferring of assets to the beneficiaries.
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What is Formal Estate Administration?
In contrast, Formal Estate Administration can be a more tedious process, but holds certain upsides. While this process may take longer to complete due to the formal appointment of a personal representative, having appointed one can make accessing certain information more feasible. For example, institutions that hold the decedent’s assets will likely disclose financial information regarding the estate to a personal representative over a petitioner of summary administration. Having a personal representative can also facilitate beneficiary conflicts or contests to the Will. Filing for an estate tax return, meaning a return on the tax paid from the estate inherited, becomes simplified because only the personal representative needs to file, rather than all the included beneficiaries having to file individually. While summary estate administration may have clearer benefits in the short term, formal administration holds various benefits for the distribution of a larger estate [8].
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Works Cited:
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(4)? ?Fla. Const. Art. X, § 4?
(5)? ?Fla. Stat. § 732.402?
(7)? ?Fla. Stat. § 735.201
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