Probate vs. Non Probate Assets

When planning your estate it is important to understand the difference between probate and non-probate assets. Probate is the process through which a court determines how to distribute your property after you die. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to your beneficiaries (non-probate assets).

The probate process includes filing a will and appointing an executor or administrator, collecting assets, paying bills, filing taxes, distributing property to heirs, and filing a final account. This can be a costly and time-consuming process, which is why some people try to avoid probate by having only non-probate assets. We also recommend that you speak with a Boca Raton probate lawyer at the Walser & Herman Law Firm to ensure your property is distributed the way you want it to be.

Many assets of the deceased person may be able to go to their new owner without probate court approval. The most common kinds of non-probate property are:

• Property held in joint tenancy by more than one person—for example, a house owned by a couple, or a bank account shared by more than one person
• Assets for which the person designated a beneficiary—for example, a POD bank account, a retirement account, or life insurance proceeds
• Assets held in a living trust

When the deceased person leaves very little behind, this process lets someone who paid for the person’s final expenses—the funeral and expenses of the last illness—be reimbursed from the assets of the estate. (Fla. Stat. 735.301.)

It can be used only if:

• The deceased person did not leave any real estate, and,
• The only assets are either exempt from creditors’ claims or don’t exceed the amount of final expenses.
• To request reimbursement, you file a form called “Disposition of Personal Property Without Administration,” which is available from the clerk of the court and on many Florida circuit courts’ websites. There’s a small filing fee; call ahead or check the court’s website to find out the exact cost.

The document must state how much you have spent, and you must document those expenses by submitting itemized bills and receipts for funeral bills and for medical expenses that were incurred during the last 60 days of the deceased person’s life. You must also state exactly which assets (a bank account, for example) you are requesting payment from. A certified copy of the death certificate must accompany the request. If there’s a Will, it must also be filed with the local circuit court

When planning your estate, you need to take into account whether property is probate property or non-probate property. Your will does not control the distribution of non-probate property. Check the ownership of your property and your accounts to make sure jointly owned property will be distributed the way you want it to. It is also important to review your beneficiary designations.

Contact an attorney at our firm to determine whether your property is being distributed the way that you want it to. You can also continue reading about probate and estate planning.