What is Probate?

What Is Probate?

by Attorney Truman Scarborough

This is the fifth in a series of articles on probate. When someone dies, assets titled just in the decedent’s name without beneficiaries are frozen. No one can sign the deceased person’s name on checks, deeds, etc. A Power of Attorney does not help, since it is effective only while the creator is living. It is similar to an employer – employee relationship. If an employer goes out of business there are no employees.  An order from the Probate Court is needed to access assets in the decedent’s name.

In earlier articles we discussed the difference between Formal and Summary Probate Administration. In Formal Administration the court creates a legal entity (like a corporation) called the Probate Estate and appoints a Personal Representative (executor) to manage the estate. There is a series of court filings with the Probate Court which oversees the administration. From the time pleadings are first filed with the court, it takes approximately six months to complete formal probate if everything runs smoothly. With Summary Administration there is one court order directing distribution of assets to the beneficiaries. This short procedure can be used when 1] the estate is $75,000 or less and not indebted, or 2] the decedent died more than two years ago.

In addition to the Formal and Summary Administration, probate is also classified as either Testate or Intestate. If the decedent had a Will it is called “Testate Probate”. When there is no Will, it is “Intestate Probate”.

A Will designates who will inherit the probate property. When there is no Will, Florida Statutes govern who will receive the decedent’s property.  A surviving spouse receives the entire estate if there are no children or if all children are from the marriage of the decedent to the surviving spouse.  If either the decedent or the surviving spouse has children who are not from the marriage, the surviving spouse gets one-half of the probate estate. The other one-half goes to the decedent’s heirs, first to children. A deceased child’s share goes down to his/her descendants (children or grandchildren). If the decedent has no surviving children, grandchildren, or great grandchildren, it is distributed to the decedent’s parents. If both parents are deceased, it passes to the parents’ descendants (the brothers, sisters, nieces and nephews of the deceased).  If none of the above are living, it will be divided with one-half to paternal and one-half to maternal grandparents or their descendants (aunts and uncles of the deceased).  Half-blood beneficiaries receive one-half as much as those who are whole blood.  

Wills also designate a person to administer the estate called the Personal Representative (executor).  When there is no Will, Florida Statutes set forth who is to be appointed Personal Representative.  Preference is given to the surviving spouse. If there is no spouse or the spouse is unable or unwilling to serve, the court will appoint the person selected by the heirs who are entitled to inherit a majority of the estate’s assets.

In addition to allowing you to select who will inherit your property and administer your estate, the probate process is normally smoother with a Will.  For example, with a Will you can: 1] give the Personal Representative the power to sell real estate without first obtaining a court order, and 2] waive the necessity of having the Personal Representative post a surety bond.

For further information on estate planning you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.