After someone passes away, the property they leave behind can pass to beneficiaries through a few different routes. Generally, there are two broad category of assets, those requiring probate to transfer title, aka probate assets, and those that do not require probate, or non-probate assets.
Probate is required whenever the decedent passes away owning property in his or her sole name. Probate is also required if the decedent owned real property with a non-spouse, as tenants in common. Often the easiest place to begin in determining if the assets requires probate is to look at how the asset is titled.
When it comes to bank or brokerage accounts, check the financial statement to determine how the account is titled. If the account simply listed the decedent’s name there is a good chance it is a probate asset. If you call the financial institution and inform them of the decedent’s passing, the bank will freeze accounts requiring probate administration and will often not release any additional information regarding the account until they receive paperwork from the probate court identifying the personal representative, aka executor, of the estate. Often the financial institution will simply request Letters of Administration or Letters Testamentary, which is a sign a probate will be required in order to move forward. If there is a designated beneficiary, or payment on death feature, the financial institution will begin the process of contracting the named beneficiary, often by sending out a letter to the last known address provided for the beneficiary. If the family has an idea of who the named beneficiary might be, it is advisable to have the beneficiary call the financial institution directly in order to identify themselves, and to request the transfer paperwork be faxed or emailed to them.
When it comes to real estate, aka real property, it will be necessary to check the most recent deed associated with the parcel which is recorded on the official records. Often you begin by identifying the property on the local property appraiser website, which will provide the timeline for sales associated with the property, as well as copies of executed deeds. If the most recent deed is held jointly with a spouse of the decedent, often the ownership qualifies as a tenancy by the entireties, and passes directly to the surviving spouse outside of the probate process. The deed should also be checked to confirm that there is no future remainder beneficiary named to take ownership upon the expiration of a life estate. While this arrangement is not the most common way to title real estate, it is becoming more popular as people consult estate planning attorneys for ways of avoiding probate. In Florida, an enhanced life estate and named future remainder beneficiary identified directly on the deed is referred to as a “lady bird deed”. The lady bird deed is a tool utilized in Medicaid planning in order to preserve the homestead while qualifying the applicant to receive FL Medicaid benefits.
In general, assets that tend to avoid the probate process have one thing in common, they all have someone, or some entity, listed directly on the title who is intended to become the new owner, or intended to control the distribution outside of the probate administration.
If you are having trouble determining whether or not your property, or assets, will have to go through the probate process
upon your death, it is important to speak with an experienced probate attorney.
Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040