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Just what is probate, anyway?

We often refer to the probate process in this estate planning blog. Our readers who have never had a loved one’s estate go through probate may have heard the term before, but wonder what it actually means to go through probate.

Basically, probate is the process of distributing the decedent’s assets to his or her beneficiaries, settling his or her outstanding debts and paying all required taxes. A special court supervises this process, under the direction of the Florida Probate Code, which is a series of laws on the subject.

As mentioned above, one of the purposes of probate is to handle the distribution of the assets the decedent (a legal term for the person who passed away) left behind. A will or trust may provide for this. But if there is no will, the decedent is said to have died intestate. In that case, the court will distribute the estate’s assets according to state law.

For example, if the decedent is survived by a spouse and at least one lineal descendent (or child) who is also the descendant of the spouse, intestate law usually requires that the spouse receive the first $60,000 of the portion of the estate that goes through probate. If the decedent has no surviving spouse or child, the assets generally go to any surviving parents, if any, or siblings or descendants of the siblings.

Most people would rather control the distribution of their assets through a will. For a will to be valid under Florida law, it must meet certain requirements, and be signed by the decedent and witnesses. A trust may be another good option. Note that a trust usually does not go through probate.

We will discuss another aspect of probate in our next blog post.

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