If you are working on your estate plan, or you recently lost a loved one and have been named the executor of their estate, you might wonder what the difference is between testate vs. intestate probate. Whether an individual dies testate or intestate can have a significant impact on how matters are ultimately resolved. For help with creating an estate plan or administering the estate of someone who has recently passed, consider contacting an estate planning and probate lawyer at Loughlin Law, P.A. by calling (561) 677-8384.
What Is the Difference Between Testate and Intestate?
Testate means that someone has a Last Will and Testament. Intestate means that someone does not have a last will and testament when they die.
Every adult of sound mind is legally able to make a will under the Florida Probate Code. Making a will enables an individual to clearly indicate who should inherit their property, and in what proportion, instead of leaving those determinations to the state’s default rules under the laws of intestacy.
What Is Probate?
Probate is the legal process of administering a deceased person’s estate. Whether a person dies testate or intestate, their estate may have to go through this process and follow similar rules. In most situations, probate is a court-supervised process. However, there are limited circumstances in which a person’s property can be completed without formal administration or court supervision.
Typically, probate is necessary to pass ownership of a decedent’s assets to the next owner. The probate process also helps to resolve the decedent’s final affairs, including payment to creditors. Probate cases are filed with the clerk of the circuit court in the county where the decedent lived before their death. After a probate case is filed, a court record is established. All filings are kept on record with the clerk’s office.
Steps Involved in the Probate Process
The Florida Courts explain that there are several steps involved in the probate process, including the following:
- Probating the will: If the decedent had a will, it is submitted to the court for examination and review.
- Obtaining letters testamentary or letters of administration: The executor, or personal representative, if there is no will, obtains official documents from the court that gives them the legal right to act on behalf of the estate. The executor or personal representative owes a fiduciary duty to act in the best interests of the estate.
- Identifying and gathering assets: The executor or personal representative identifies and gathers assets. They may also take steps to safeguard estate property, such as moving it to a secure location or purchasing insurance. In some cases, a professional appraiser may have to be called in to provide a professional evaluation of assets whose exact value is unknown.
- Notifying interested parties: The executor is responsible for notifying heirs, beneficiaries, and creditors of the death and their appointment.
- Paying final debts: The decedent’s final debts must be paid before the heirs or beneficiaries receive their property.
- Preparing legal paperwork: The executor may have to prepare various papers for the court, such as inventories of the probate assets, accountings of how they have administered the estate, and requests to take certain steps on behalf of the estate, such as selling real property.
- Distributing assets: After all of the other tasks have been completed, the executor distributes the remaining property according to the terms of the will, if the former owner died testate, or state law, if the individual died intestate. The executor also prepares a final accounting and asks to close the estate.
The probate process can be complex. A probate lawyer from Loughlin Law, P.A. may be able to help. Probate attorneys’ fees can often be paid through the probate property.
Which Assets Are Part of the Probate Estate?
Not all assets are necessarily part of the probate estate. Property may be transferred to other people or entities before death, or at the time of death, through a variety of legal mechanisms. Property that may be transferred to others may include:
- Property that was owned as joint tenants with the right of survivorship
- Property that was transferred via a payable on death or transfer on death designation, including checking accounts, savings accounts, stocks, or bonds
- Real property that was transferred to another person through a lady bird deed or beneficiary deed
- Property that has a beneficiary designation and does not list the estate as a beneficiary
- Property that was transferred to a trust
Probate assets instead are the assets person owns at the time of their death that are not automatically transferred by some other mechanism. Probate assets may include:
- A bank or investment account in the sole name of the decedent without a payable on death or transfer on death designation
- Real property owned in the decedent’s sole name or as tenants in common
- A life insurance policy that names the estate as the beneficiary
- Personal property not transferred to a trust, such as jewelry, financial accounts, business assets, and collectibles
What Is Intestate Succession in Florida?
The major difference between testate and intestate probate is that property that passes through a will goes to the person or entity named as the beneficiary, while property that goes through intestate probate is distributed according to the laws of intestate succession established in Chapter 732 of the Florida Probate Code. Under these rules, the relatives who are most closely related to the decedent stand to inherit their property.
The portion of the estate heirs receive in an intestate succession depends on whether there were other relatives. A surviving spouse inherits everything if the decedent leaves no descendants. If the decedent does leave descendants, and these are not also children of their surviving spouse, the spouse inherits one-half of the estate, and the rest is divided equally among the descendants. If the decedent has no surviving spouse or descendants, their parents inherit everything. If there are no surviving parents, spouse, or descendants, any surviving siblings inherit the entire estate in equal shares.
Contact an Experienced Probate Lawyer for Assistance
If you are creating your own estate plan, you will likely want to avoid intestate probate. You have the power to designate who should inherit your property, and in what proportions. An estate planning lawyer can listen to your needs and identify the documents best suited to communicating your wishes. We also provide assistance with the probate process for executors and personal representatives. If you need assistance with any of these services, consider contacting Loughlin Law, P.A. at (561) 677-8384 to schedule your personal consultation.
