What is Probate, What Assets Go Through Probate, and What Doesn’t?

When a loved one passes away in Florida, that person’s assets will often be identified and distributed through the probate process, and other important matters concerning the deceased’s estate will also be handled through probate. For anyone who has never been through probate following a loved one’s death or for anyone who does not have specialized knowledge or education concerning trusts and estates law, probate can be extremely complicated and confusing. Many people do not understand how probate works, or when an estate needs to be probated. There are also many misconceptions concerning probate. 

Our Florida probate lawyers can tell you more about probate more broadly, and we can provide you with more information about assets that do go through probate and those that do not. Do not hesitate to get in touch with Loughlin, Law, P.A. to ask any questions you have about probate or to get help with your situation.


Understanding Probate in Florida

Probate is a commonly misunderstood process in Florida, and it is important to have the facts. Under the Florida Probate Code, the term “probate of will” is defined as “all steps necessary to establish the validity of a will and to admit a will to probate.” Yet the probate process involves more than just the probate of a will. To be clear, the “probate of will” is just one step in the probate process. Probate more broadly is a term that refers to the legal process in which the assets of a deceased person are identified and gathered, the deceased’s debts are paid, and remaining assets are distributed to the deceased’s beneficiaries under the Florida Probate Code. 

During the probate process, the identified assets from the deceased’s estate will pay for the costs of probate and, if applicable and necessary, the funeral costs for the deceased. Then, the deceased’s debts will be paid from the estate. After these steps have occurred, then the remaining assets in the deceased’s estate will be distributed according to the beneficiaries, either according to the terms of the deceased’s will or according to Florida intestacy law if the deceased died without a will. Here is where the “probate of will” becomes applicable. This is one part of the overall probate process. 

There are two general types of probate in Florida: formal probate administration and a simplified process known as summary administration, or “Disposition of Personal Property Without Administration.” There are only certain circumstances in which the simplified process occurs. Accordingly, you should assume that formal probate administration will be necessary if the deceased had assets that will need to go through probate. Probate is ultimately necessary both for the purpose of closing out the deceased’s estate and paying any debts, as well as for the purpose of distributing specific types of assets to the deceased’s beneficiaries.


Types of Assets That Go Through Probate

Many types of assets must go through the probate process before they can be distributed to a deceased’s beneficiaries. There are some misconceptions concerning the kinds of assets that must be probated, and some people mistakenly believe that having a will allows you to avoid probate. To be clear, regardless of whether you have a will, certain types of assets must go through probate. These are commonly described as “probate assets” in Florida. 

The types of assets that must go through probate generally include assets the deceased owned solely in their name at the time of death, and for which there is no other mechanism for the asset to be transferred to an heir or beneficiary. Those assets include, for example:

  • Bank accounts or other accounts or investments that are in the deceased’s name alone;
  • Tangible assets in the deceased’s name alone;
  • Life insurance policy that is payable to the estate of the deceased;
  • Individual retirement account (IRA) payable to the estate of the deceased; and
  • Real estate titled only in the deceased’s name.

All of these assets, and potentially more, are considered to be probate assets that must go through probate.


Assets That Do Not Need to Go Through Probate

Some types of assets do not need to go through probate. Many people work with an estate planning lawyer to avoid probate by making certain changes to their assets so that they will not need to be distributed through probate. The following are examples of assets that do not go through probate:

  • Bank accounts or other accounts or investments that have a co-owner on the account, or that are transferable upon death to another party;
  • Tangible assets with a co-owner;
  • Life insurance policy that is payable to a beneficiary other than the estate of the deceased;
  • Individual retirement account (IRA) payable to a beneficiary other than the estate of the deceased;
  • Real estate titled in the deceased’s name and the name of one or more other parties with rights of survivorship, or real estate owners by the deceased and their spouse as tenants by the entirety; and
  • Assets held in a trust.


Contact a Boca Raton Probate Attorney Today

If you have questions about the probate process more generally, or if you need assistance determining whether an asset must go through probate, you should seek advice from one of the experienced Boca Raton probate attorneys at our firm. Contact Loughlin Law, P.A. to learn more about how we can assist you. 

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