Not all assets pass through probate when you die. Indeed, many assets do not pass through probate. Below we will discuss just 4 types of assets that are exempt from probate in Florida.
Probate – Just the Basics
Before we look at the 4 types of assets that do not go through probate in Florida that we want to focus on today, it is important to first get a clear understanding of what probate is and how it works.
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Briefly, probate is the court-supervised legal process that a decedent’s estate goes through in order to distribute the decedent’s assets to his/her heirs.
Generally speaking, in Florida, probate can be formal (formal administration) or informal (summary administration) depending, among other things, on the value of a decedent’s estate.
Probate assets are property (bank accounts, real estate) that are titled in decedent’s sole name at the time of his/her death that don’t have another way of getting to the beneficiary.
For example, a bank account without a designated beneficiary will need to go through probate. Real estate titled in your sole name, or real estate held by two or more people as “tenants in common” without survivorship rights, will also need to go through probate.
Probate is required to transfer these types of assets to a decedent’s beneficiaries. If the decedent had a valid Last Will and Testament (“Will”), the probate court can transfer the assets according to the decedent’s Will. If the decedent did not have a Will, then the probate court will follow Florida’s intestacy laws to determine who gets what.
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Probate, although required even if a decedent has a valid Will, takes some time to complete (several months to a year generally) and can be costly. If the decedent died without a Will, or if there are issues regarding whether the Will was valid (in whole or in part), then the probate process can become extremely time-consuming and expensive and can even drag on for years.
Thus, avoiding probate (meaning the expensive and time-consuming process that can deplete a decedent’s estate) is the aim of estate planning and experienced estate and probate attorneys.
What are Exempt Assets?
Under Florida law, when the decedent is a Florida resident, before any creditor’s claims are paid, the surviving spouse is entitled to receive any exempt assets. If there is no surviving spouse, but there are surviving children, the child/children may be entitled to a share of the estate.
Florida has two sources of law that provide for exemptions: the Florida Constitution, and statutory exemptions. The two sources of exemptions complement each other in addition to providing some protection for the surviving spouse and heirs from the claims of creditors.
4 Types of Assets that are Exempt from Probate in Florida
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Homestead property
Probably the most important exemption from probate is the constitutional protection afforded to a “homestead.”
In Florida, a homestead is exempt from creditor’s claims, thus it is not considered to be part of a decedent’s probate estate. As a result, a Florida homestead can be transferred to the heirs without undergoing probate.
Be advised, however, that this is a very complicated area of law. You should always consult with an experienced probate lawyer when considering this exemption as questions frequently arise concerning any number of issues ranging from whether a home can be sold, or whether it is still considered to be a decedent’s “homestead” if the decedent moved into an assisted living facility shortly before death.
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Household furnishings
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As an additional protection for the decedent’s family (i.e., surviving spouse and heirs), Florida’s statutory laws exempt household furniture, furnishings and appliances from creditor’s claims—up to $20,000 in net value at the time of the decedent’s death.
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Motor vehicles
Similarly, the law protects automobiles (now defied as “motor vehicles”) from creditors’ claims. Although more broadly defined than “automobiles,” only two motor vehicles are exempt from probate.
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College tuition
Florida’s statutory exemption for prepaid college board programs was expanded to now include “all qualified tuition programs” that are authorized by specific sections of the Internal Revenue Code.
The above four exemptions are not the only exemptions from probate allowed by Florida law. Understanding what assets are exempt from probate is critical for anyone who is nominated as a personal representative. It is also important for family members. Getting help from an experienced probate lawyer is only a phone call away.
Get Our Free Probate Resources & Checklists
Access our free Florida probate administration resources! Jumpstart the probate process with our complimentary probate checklist, a valuable initial guide for those uncertain about where to start. Additionally, explore our visual flowchart designed to help you determine the necessity of probate administration in your specific situation. This chart provides a clear overview of real estate and financial accounts. Download now.
Talk to Our Probate Attorneys
Our team here at SJF Law Group works hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. Our estate planning lawyers expertly guide individuals and families through the complex probate process and capably handle all aspects of the creation, administration, and settlement of estates and trusts. When you work with our Florida estate planning attorneys at SJF Law Group, you get more than just an estate plan: you get peace of mind.
As trusted probate and estate planning lawyers, we serve individuals and families in the vibrant communities of Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami, FL. We are also pleased to offer the options of both in-person and virtual appointments throughout Florida to make our services accessible no matter where you are located.
If you want to discuss your specific situations with one of our estate planning lawyers, do not hesitate to reach out to our law firm at 954-231-3430. You can also fill out our contact form.
Source: https://t-tees.com
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