When is probate necessary? : Brandon Business, Probate and Real Estate Law Blog

When is probate necessary?

by Jaimee B. Henbest, Esq. on 04/26/11

When a person dies, the family or loved ones are left to sort out the assets that the decedent owned.  When a person dies, many assets pass to beneficiaries by operation of law.  These assets do not need to be probated.  The only assets which need to be probated are only assets which do not pass directly to beneficiaries.  So how do you figure out which assets need to be probated?  In determining whether a probate is necessary, it is important to identify how the decedent titled his or her assets. 

Generally, assets that will need to go through probate are those that are only in the decedent's name alone.  For example, a boat which is titled in Aunt Marta's name alone when she died would likely go through probate.  On the flip side assets that have beneficiaries listed will likely not have to go through probate.  For example, Grandma Joan has an insurance policy and the beneficiaries of the insurance policy are her children, John and Jake.  Another way an asset would not require to go through probate is if a person included a Payable on Death or Transfer on Death beneficiary on an account.

When a person owns property (real property or personal property) with someone else it is important to look at the deed/account to determine how the property is titled to see if the property has to be probated.  There are several ways to hold property with another.  In Florida they are, tenancy by the entireties, joint tenant with right of survivorship or tenants in common.  With property held either by tenancy by the entireties or joint tenants with right of survivorship, when one of the owners dies, the property automatically passes to the survivor by operation of law.  However, if the title to the property is listed as tenants in common, each co-owner owns an undivided share in the property depending upon the number of co-owners.  If one of the co-owners dies, his or her share will pass through probate.
It is important to consult with an attorney to categorize the decedent's property. Some property can fall into gray areas and careful consideration of all the facts and applicable law is required to determine the status of the property.  For more information on probate please see our website or contact us to schedule an appointment.

Posted by Jaimee Henbest
Jaimee Henbest is an associate with the law firm of Rory B. Weiner, P.A.  Jaimee's practice areas include estate planning, probate and trust administration matters and real estate.


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