What Property is Subject to Probate in Florida?

Essentially Probate assets are assets that belong to the estate.  Much of modern estate planning attempts to use revocable living trusts and other mechanisms for avoiding the Probate process.  As someone who frequently encounters family members dealing with deceit and theft of inheritance and otherwise, I can tell you that sometimes it benefits everyone to have the rules of Probate and the Courts involved.  Some assets, like life insurance policies, annuities and IRAs may have a specific designation to a particular person upon the decedent’s death.  If so, these assets pass to that particular individual outside of Probate.  Additionally, if you simply maintain accounts with a transfer-on-death (TOD) or payable-on-death (POD) designation, they will not be subject to probate.   Tricks like that can allow some people to obtain assets without Court supervision.   By far the most common reason people need to open a Florida probate is to dispose of Florida property.   Whatever the case, if you are unsure of whether the asset needs to go into probate, you need to determine whether you can get access to it without a Court Order.  If not, you need to go through probate.  Finally, cars and mobile homes can pass inside and outside of probate.  The Florida Department of motor vehicles has alternate pathways to obtain new title outside of the Probate Court process so long as you can submit sworn affidavits.  These Florida Highway and Safety Motor Vehicle Forms can be accessed on our blog by clicking here.

Testate Florida Probates (With a Will)

If someone dies with a will in Florida they are said to have passed away testate.  The original will needs to be deposited with the Clerk of Court within 15 days pursuant to Florida law.  The appropriate Clerk of Court depends on the appropriate venue or locale where the Probate should be initiated.  Florida law has a priority scheme but generally you are looking for County where the decedent was domiciled at the time of their passing.  Once you have deposited the original of the Will you must examine it to determine whether the document complies with Florida law.  The document must be signed in the presence of two witnesses, signed by the witnesses and also notarized.  Additionally, Florida law has a provision known as a self-proving affidavit.  This is an additional affidavit stuck to the back of a will where the testator affirms that he/she has executed what is his or her last known will and testament.  While this may be simply a silly formality, Florida Probate law allows wills with a self-proving affidavit to be automatically admitted to probate.  That means that the Court will automatically accept wills with a self-proving affidavit to the Probate Court.   Without this affidavit, the witnesses or the personal representative named in the will must submit and oath affirming the validity of the will at a local Courthouse.  This process is slows down a Florida Probate and just creates an additional hurdle. 

A will also typically appoints a Personal Representative, known as an executor in some areas, this is a person designated by the decedent to manage the estate and wrap up its affairs.  When a probate is initiated this person will have preference in appointment to become the designated individual for purposes of creating an estate account, settling creditor claims and ultimately seeing to the proper distribution of the assets, all under the supervision of the Probate Judge, subject to the Florida Rules of Probate and the Florida Probate Code.

Surviving Spouse Rights in a Testate Estate

In Florida, if someone dies with a Will, their surviving spouse is entitled to a minimum of the assets in the estate.  This base amount and the surviving spouse’s right to enforce the minimum are known as the elective share. So no matter what a will says, a surviving spouse pursuant to Fla. Stat. 732.2065 is entitled to at minimum 30 Percent of the elective estate.  

If you pass away in Florida without a will, the State of Florida uses a default set of rules to determine how your estate will be distributed.  This is known as Florida’s rules of intestate succession.  The distribution scheme is codified in Florida law, at Fla. Stat. 732.103.  Here is the statutory default scheme for Florida:

(1) to the surviving spouse and descendants;
(2) to the surviving spouse in absence of descendants;
(3) to the descendants in the absence of a surviving spouse;
(4) if there is no descendant, to the father and mother or the survivor of them;
(5) if there is none of the foregoing, to the brothers and sisters and the descendants of deceased brothers and sisters;
(6) if there is none of the foregoing, in halves to the decedent’s paternal and maternal kindred in the specified order by
statute; and
(7) if there is no kindred of either part, the whole of the property goes to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

Ok so generally to your spouse and decedents and your relatives.  This assumes of course that the estate has more assets than debt.  So if you’re survived by a spouse and children (lineal descendants), your assets will pass to them.  The rationale behind these default rules is that is what most people intend to do within their estate planning.  Assuming that you had no will and died with both a surviving spouse and children and children from a prior marriage in Florida?  Your probate assets would be distributed among your heirs is a specific way.  The proportionate shares are laid out as follows:

 I. Surviving Spouse’s Share of Intestate Estate: (Fla. Stat. 732.102)

The intestate share of the surviving spouse is:

(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

In other words, assuming the decedent had a surviving spouse and died without a will, if there are no children the spouse inherits everything.  If there are children of the deceased who are also the children of the surviving spouse, the surviving spouse inherits everything.  Now when you involve step-children who are not the children of both the surviving spouse and the decedent, the surviving spouse will inherit ½ and the lineal descendants of the deceased will inherit the remaining ½. 

II. Distribution among the Lineal Descendants Per Stirpes

Assuming further that in your Florida Probate, because of your family structure the surviving spouse does not take the entire probate estate.  The remaining amount to be distributed to the lineal descendants is distributed “Per Stirpes.”  This is an old latin term that translates into “by the branch.”  For purposes of Florida Probate, that means that among heirs the default intestate rules attempt to provide distribution equally according to lineal relationship in the family tree.  Per Stirpes distribution also allows children of a deceased issue to take in their parent’s place.  For example:

Person A passes away without a surviving spouse but is survived by three children, B, C and D.  At the time of A’s passing child B has passed away but before his passing he had two children (A’s grandchildren).  The estate would be distributed into equal 1/3 shares to B, C, D.  Since B predeceased A, his children would each take ½ of the 1/3 share (equal to 1/6) of the overall estate.