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PROBATE
ASSET IDENTIFICATION AND TRANSFER
How an individual’s assets are transferred to their heirs after they die is a pivotal issue in estate planning and probate administration that most people don’t quite understand.
One of the biggest misconceptions regarding asset transfer is that most people assume if your Last Will and Testament says that your assets are to be transferred in a particular way, then all your asset will actually be transferred in that way.
However, this is not always the case. Good estate planning requires you to understand that the way an asset will be transferred when you die will first and foremost be determined by the way in which it is titled at the time of your death.
Thus, for your estate plan to work the way you want, it is extremely important that title to your asset be aligned with your ultimate estate planning objectives.
The first step in the probate process is locating or identifying any assets associated with the decedent, and the second step is to determine how those assets are titled in order to ascertain how they are to be distributed. Assets will fall into distinct categories depending on how they are titled as follows:
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Non-probate assets that pass via joint ownership, rights of survivorship or via beneficiary designations;
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Probate assets controlled by the Last Will and Testament, or intestate statutes;
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Trust assets controlled by a specific trust document.
Asset Identification and Transfer
ESTATE ADMINISTRATION
The loss of a loved one can be extremely stressful for the survivors of the deceased.
In addition to dealing with the grief that accompanies a loved one’s death, there are many things that must be done to settle the deceased’s estate and to handle the assets owned by the decedent.
The vast majority of people have never heard the word “probate” before having to deal with the process personally due to the passing of a loved one.
The probate process is simply the court proceeding required for transferring property which
was owned by the decedent in his or her individual name, to the beneficiaries of the decedent’s estate.
The probate process is different in every state, but the typical steps involved include inventorying the estate assets, identifying and handling creditor claims, as well as making distributions to the beneficiaries.
Probate administration and estate administration refer to the same process. Any assets which are owned in the sole name of the decedent, which have no beneficiary designations, must fall into the decedent’s estate and the only way to transfer or sell estate assets, a/k/a probate assets, is to initiate the appropriate
court supervised probate process.
Estat Administration
WHAT IS PROBATE?
Probate is the court process by which your Last Will and Testament will be legally validated after you die, assuming you leave one.
However, most people understand probate to be the entire process of settling someone’s estate after they die.
When there is a Will and/or trust which was executed by the decedent prior to death, the estate is referred to as “testate.”
When there is no Will or estate planning documents to dictate to whom estate assets are to be distributed, the estate is referred to as “intestate.”
Every state has their own version of an intestacy statute, which stipulate the default rules for how a person’s property is to be distributed.
There are three general stages of probate:
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Validating the Last Will and Testament, or stipulating that there is no Will, and appointing a personal representative (aka executor);
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Inventorying all of your assets, identifying and settling debts, and filing the necessary taxes forms;
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Disbursing the remaining assets to the identified beneficiaries or heirs in accordance with the Last Will and Testament, or with the Florida intestacy statute.
What is probate?
WHAT IS AN EXECUTOR/PERSONAL REPRESENTATIVE?
The titles, executor or personal representative, all refer to the individual who is appointed by the probate court to administer the estate.
The Florida probate code, refers to the person in charge of the estate as the personal representative.
Some states like New York, refer to the person appointed by the court to be in charge of the estate as the executor.
Whatever the title, the role and responsibilities are the same.
The personal representative has a great deal of power and responsibility, since that person is granted the legal authority to step into the shoes of the decedent in order to begin collecting assets and consolidating them on behalf of the estate.
In short, the personal representative will have the legal authority to liquidate bank and brokerage accounts and have the proceeds deposited into a new bank account held in the name of the estate.
What is an Executor/Personal Representative?
HOW TO CHOOSE A PERSONAL REPRESENTATIVE
The person you choose as the Personal Representative of your estate is the person that will be in charge of gathering your assets, paying off your debts, and distributing all assets that are a part of your estate.
Of course, for this very reason, it is critical that you appoint someone you trust to handle your estate honestly, responsibly, and efficiently to best serve you and your family after you pass on.
On the other hand, if you are an individual who has recently been appointed as the Personal Representative of someone who passed away, you will most likely need the assistance of an experienced Florida estate administration attorney who can guide you through every step of the process ahead.
How to Choose a Personal Representative?
WHAT DOES A PERSONAL REPRESENTATIVE DO?
Personal Representatives have a huge responsibility.
As the Personal Representative of your loved one’s estate, there is a very good chance that you will have to help your loved one’s estate through the probate process, which is often a complex one.
Some responsibilities Personal Representatives frequently have are as follows:
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Collecting their loved one’s assets
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Protecting and preserving those assets
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Paying off their loved one’s estate taxes and debts
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Distributing those assets to all beneficiaries of the decedent
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Documenting every step of the process and providing Florida courts with that documentation
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Closing their loved one’s estate
What does a Personal Representative Do?
TYPES OF PROBATE ADMINISTRATION
There are different forms of probate available in Florida, depending on the
circumstances involved with the estate, namely:
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Formal Administration – a probate proceeding involving the full probate process, required of any estate that is projected to have assets valued over $75,000. The formal probate process includes appointing a personal representative and publishing notice to creditors, establishing the 90-day creditor period.
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Summary Administration – a streamlined version of the probate process for small-value estates under $75,000 or when the decedent has been dead for more than two years. A summary administration does not result in the appointment of a personal representative, and generally does not require a publication of notice to creditors. A summary administration involves the circuit court judge issuing one order transferring all identified property directly to the beneficiaries.
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Ancillary Administration – a probate proceeding conducted for controlling, selling or transferring real estate held in a state or country, other than the state of last residence of the decedent. Generally the domiciliary probate/estate must first be established in the state that the decedent was domiciled in at the time of death. Once the executor is appointed for the domiciliary estate, they can petition to open an ancillary administration. The reason this is required is because the local probate courts must grant authority or sanction the transfer of real estate in order to effectively clear title.
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Administration of a Non-Resident – a type of formal or summary probate conducted
on behalf of a decedent whose last residence was outside the state of Florida, but no
domiciliary probate was necessary.
Types of Probate Administration
ANCILLARY PROBATE ADMINISTRATION
Probate is the legal process of settling a person’s estate after they have passed away.
In general, a decedent’s estate will need to go through probate whenever he or she died owning property in their sole name, without beneficiary designations.
If the decedent owned real property, aka real estate, in states other than their home state when they passed away, this property will have to undergo an additional probate procedure called ancillary probate.
Ancillary probate is a supplementary probate proceeding in another state that is necessary to complete the “domiciliary” probate proceeding in the decedent’s home state and to effectively sell or transfer the property located in the non- domiciliary state.
For instance, if the decedent resided in New York when he or she passed away, the domiciliary probate proceeding would take place in a New York surrogate court.
An ancillary probate proceeding would then have to take place in a Florida court to clear title in transferring the decedent’s vacation home or timeshare, located in Florida.
When Is An Ancillary Probate Administration Mandatory? In Florida, an ancillary probate administration is generally required whenever a person who was not a resident of the state:
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Died owning real property, a/k/a real estate, in Florida.
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Died owning a timeshare in Florida.
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Died owning any property or liability in Florida which would require the signature of a Florida appointed personal representative in order to collect, transfer or discharge.
Ancillary Probate Administration
WHY CHOOSE US?
When you retain our firm, you receive personal, direct assistance from Fiducia Law Probate attorney, Fatima T. Hasan, Esq., and you won’t just be handed off to junior staff to file and administer your case.
Every case has its own complexities, which is why it’s important you choose a firm like ours, with years of experience.
We know you are overwhelmed and likely have a lot of questions, and we are here
to guide you through the process and to address all your concerns.
You are not just getting a law firm that understands your needs, but we will explain how Florida probate laws apply to your case in a way that you can understand.
Unlike other probate law firms, we work on fast timelines and utilize the latest technology to push the case forward as fast as the family is willing to sign the paperwork.
In addition, there is no need for you to come into the office or participate in any hearings for a standard probate administration.
We handle all aspects of our cases electronically, from sending pleadings for signature, to e-filing with the court.
From handling the initial probate filings to the final asset distributions, our goal is for you to feel more at ease about the probate process and confident with us handling your estate for the best possible results.
We will answer any and all of your questions and keep you updated throughout the entire process.
A law firm that cares and is based on trust, confidence, and reliance!
Why Choose Us?
Forms
Click on the links below to download the form or forms that apply to you. If you have any questions about these forms, please don’t hesitate to reach out so we can help you. Thank you!
Get in Touch
Thank you for visiting our website. To connect with us, please call (561) 299-0437.
110 E Broward Blvd. Suite 1700, Fort Lauderdale, FL 33301
Telephone: (561) 299 - 0437
Facsimile: (561) 336 - 9196
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