If a Jacksonville resident dies owning anything in his or her name individually a probate is necessary in Florida. In addition, if a person living in another state owns real property (a home or land) in Florida there will also need to be a probate case opened in Florida. Some examples of individually owned assets include a checking account, a stock account, an insurance policy payable to the insured’s estate or someone who does not survive the decedent, a home or other real estate, or bonds. Just because a Florida will names an asset and a beneficiary, does not mean that the asset will be distributed per the terms of the will. If such asset is jointly owned, for example, it will generally pass to the surviving joint owner (with few exceptions). To carry out the instructions in the will, you must first open a probate. In Florida if there is more than one beneficiary, a lawyer will be required to open the probate. This is because if while you can represent yourself in a probate case, you cannot represent another if you are not a licensed attorney in Florida.
When is a probate not required?
If an asset has a payable-on-death beneficiary or a joint owner it is not subject to probate. If there are no assets that are not disposed of upon death, there is often no need to open a probate in Florida. Property that is generally not included in the probate estate includes life insurance proceeds that are not payable to the decedent’s estate, jointly owned property, and property held in an intervivos trust (a trust created during the life of the decedent commonly called a living trust, revocable trust, or revocable living trust). Trust property may be used to satisfy the expenses of estate administration and claims of creditors if the probate property is not sufficient. If you have a trust, a notice that the trust exists is required to be filed with the probate court to give creditors the ability to file claims and notify the trustee that there are debts that need to be paid. If the only property owned that is subject to a probate is upside down or does not have equity, the beneficiaries may choose to abandon the property and not complete a Florida probate. This is happening more and more with many homes having negative equity.
Will a probate be required in state other than Florida?
If the decedent owned real property in a state other than Florida without in their individual name, a probate will be required to dispose of the real property that was owned in the other state. If property is owned in more than one state, a probate will be required in each state that real property was owned. A probate in another state is called an ancillary probate administration.
If you have questions regarding a Florida probate, you should contact a Jacksonville Probate Lawyer to discuss your situation and what makes the most sense given your particular circumstances.