Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.



Step One: Make a List How the Deceased Person’s Assets are Titled

Start with a list of each spouse's assets and how they are titled.  That will determine the need for probate and the rights of the various parties.


Step Two: Remove All Non-Probate Assets From the List

Not all assets are Florida probate assets. Many assets pass automatically to a survivor based on how the asset is titled. Common examples of “non-probate” assets include:
  • Real estate that is owned jointly with rights of survivorship will pass to the surviving owner(s).
  • Bank accounts that are jointly owned will pass to the surviving owners.
  • Life insurance and financial accounts (bank accounts, brokerage accounts, CDs) that have valid beneficiary designations will pass to the surviving beneficiaries.
  • Assets that are titled in a living trust will pass in accordance with the terms of the trust.
It is important to understand that it doesn’t matter if the deceased person had a will or what the will says. If the asset isn’t a probate asset, it never gets to probate and what the will states.  The way the asset is titled will trump whatever the will says about it. 


Step Three: Be Sure that You can Prove Ownership of Whatever is Left

Subtracted from the list the non-probate assets and the assets that remain are assets of the estate.  These are the “probate assets” that are governed by the deceased person’s will (if he or she had one) or the intestacy laws (if he or she died without a will). If the decedent had a bank account or parcel of real estate in his or her name alone, that property will pass under the Will or through the intestacy laws to his or her heirs are beneficiaries. 

But many times, all that is left after subtracting out the non-probate assets is miscellaneous personal property (household furnishings, etc.).  You then need to be able to prove who owns that property.  If the remaining items were purchased by both spouses then it will be very difficult to prove in court who owned it. This kind of factual difficulty makes it almost impossible to claim an interest in most personal property.


Step Four: Decide Whether it’s Worth It

After reviewing steps 1-3, you should have a list of assets and know their value.  You then need to compare the value of the assets with the cost of probate (or an alternative to probate) to determine whether it is worthwhile to deal with the estate in court. For small estates, there may be an alternative to full estate administration that will make financial sense.  If a full administration is required, you will want to be sure that the net value of the assets (after subtracting out the debts) involved exceed the value of the decedent’s property.