Do All Estates Have To Go Through Probate in Florida?

In Florida, most estates will go through some sort of probate process. However, not every estate will need to go through probate. For instance, if a person passes away without a will and all of their assets have beneficiaries or joint owners with rights of survivorship, probate is likely not required. But since most people have at least some assets that are only titled in their name, the majority of estates will need to go through probate.

What Assets Must Go Through Probate in Florida?

Individually titled assets with no beneficiary designation or joint owners with survivorship rights must go through probate in Florida.

However, some assets will be automatically passed to a designated beneficiary or a co-owner when an individual passes away. Property that is held in trust can also bypass the probate process. 

In Florida, non-probate assets include:

• Jointly owned assets like bank accounts and real property (if there is a right of survivorship).
• Bank, brokerage, retirement, and other investment accounts that have designated beneficiaries of joint owners with rights of survivorship.
• Death benefits from a life insurance policy with a designated beneficiary.
• Any assets that are held in trust.

How Long Do You Have To File Probate After Death in Florida?

Florida law does not include a specific time limit for opening probate after someone passes away. However, Florida Probate Code 732.901 requires the custodian of an original will to deposit the will with the clerk of the court within 10 days of learning of the death. 

How Do I Avoid Probate in Florida?

In Florida, you can help your beneficiaries avoid probate by using estate planning methods other than a will. For instance, trusts allow you to privately pass any type of property to your beneficiaries without going through the probate process. Additionally, jointly owned property with survivorship rights and assets that pass to named beneficiaries do not go through probate. 

By planning to pass your wealth through trusts, joint ownership, and beneficiary designations, you may be able to avoid probate altogether. However, it can be challenging to guarantee that all of your assets are accounted for using one of these methods, particularly as you will continue to acquire property after putting your estate plan in place. If any of your property is subject to probate and you don’t have a will, it will be distributed according to the state’s intestacy laws, which may be contrary to your wishes. 

For this reason, many people use “pour-over” wills to simplify the probate process. A pour-over will simply leaves some or all of your probate assets to a trust, which will ensure that your wishes will are followed. Pour-over wills still allow you to maintain some privacy because the terms of the trust are not included in the will.

It’s important to note that there is not much you can do to avoid probate once your loved one has passed away. If probate is necessary for someone else’s estate, you typically cannot change that. However, some smaller estates may qualify for simplified probate proceedings such as summary administration.

A probate litigation attorney can help you determine whether your loved one’s estate can be administered outside the probate process or if you will need to open a case in probate court. Keep in mind that even if there is no will to be probated, you still may need to file a case in the probate court for property to be distributed. By consulting with an experienced lawyer, you can determine the most cost-effective way to ensure that your loved one’s estate is administered correctly.