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Am I required to probate a will in Florida?

February 26, 2021 CSBB Blog

Under Florida law there is no requirement to probate a will.

When determining whether or not to probate a will it is important to consider the following:

What assets must be transferred out of the Decedent’s name?  If there are no probate assets there would be no reason to probate a will. Assets tilted in the decedent’s (deceased person) name are probate assets (e.g., bank account without a pay on death designation).  Conversely, the following assets are not probate assets:

  • Revocable Trusts. Assets held within a revocable trust are distributed by the trustee of the trust to the named beneficiaries of the trust.  The assets in the revocable trust are not probate assets.
  • Joint Title with Right of Survivorship. When assets are jointly titled with right of survivorship the ownership passes to the remaining owner(s) after the death of each other.  For example, if A, B, and C own a bank account in a joint tenancy with right of survivorship, and C dies, effective upon C’s death the bank account is owned by A and B, jointly with right of survivorship. The process continues until one owner remains, or an agreement to the contrary.  Assets that are titled jointly with right of survivorship are not probate assets.  Where it gets tricky is whether a jointly titled asset (e.g., bank account or real estate) is one with a right of survivorship or a tenancy in common.
  • Tenancy by the Entireties. When a married couple owns an asset together it is treated as a tenancy by the entirety.  The surviving spouse automatically becomes the owner of the asset upon the first spouse’s death.  These assets are not probate assets.
  • Accounts with Beneficiary Designations. Individual retirement accounts (IRA) and retirement accounts, life insurance and other assets with beneficiary designations are not probate assets unless the estate is listed as the beneficiary.
  • Pay-on-Death (POD)/Transfer-on-death (TOD). POD and TOD accounts offer account holders the opportunity to list who the account will pay or transfer to automatically upon the account holder’s death. These are commonly found in bank and brokerage accounts.
  • Florida Homestead. The primary residence of a Florida resident is treated as protected homestead property. Although homestead property is not a probate asset, probate may be required to obtain a monument of title. Homestead property is afforded protections under Florida’s Constitution and the Florida Probate Code, among other bodies of law.  

Did the decedent have debts that outweighed his or her assets? Probate administration can be expensive and time consuming.  If the debts of the decedent exceed the assets only creditors stand to gain from probate. Creditors are able to probate the estate to get paid.  If the creditor period has expired, however, probate should be pursued because the creditors will be time-barred from pursuing their claims against the estate.

Is there a wrongful death claim? It may be necessary to open an estate for standing in a wrongful death action.

Was the decedent involved in pending litigation?  When an individual dies during the pendency of litigation, that individual’s estate may need to be substituted in as the proper party.  Accordingly, an estate may need to be opened so that the decedent’s estate has standing to proceed in the pending litigation. 

Does the estate have income tax or estate tax liabilities? If the decedent had a taxable estate probate should be commenced to file an estate tax return even if there are no probate assets.  If the decedent had not paid income taxes for any prior years, or for the filing of the final year income tax, probate may be needed to address this issue. Of course, probate may not be necessary if there are no assets to seize.

Note: All original wills must be deposited. If you are in control of an original will you must deposit it within ten (10) days after receiving information that the testator is dead. Fla. Stat. § 732.901, governing the production of wills, states:

  • The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator’s date of death or the last four digits of the testator’s social security number to the clerk upon deposit.  
  • Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.
  • An original will submitted to the clerk with a petition or other pleading is deemed to have been deposited with the clerk.
  • Upon receipt, the clerk shall retain and preserve the original will in its original form for at least 20 years. If the probate of a will is initiated, the original will may be maintained by the clerk with the other pleadings during the pendency of the proceedings, but the will must at all times be retained in its original form for the remainder of the 20-year period whether or not the will is admitted to probate or the proceedings are terminated.  Transforming and storing a will on film, microfilm, magnetic, electronic, optical, or other substitute media or recording a will onto an electronic recordkeeping system, whether or not in according with the standards adopted by the Supreme Court of Florida, or permanently recording a will does not eliminate the requirement to preserve the original will.
  • For purposes of this section, the term “will” includes a separate writing as described in Fla. Stat. § 732.515.

The probate lawyers at Comiter, Singer, Baseman & Braun LLP can be reached at (561) 626-2101.

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