Why is probate necessary?
Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.
Probate is necessary when a person owns property in his or her own name and either dies or becomes disabled. Back to top There are two types of probate. Living probate, called guardianship in Texas, and conservatorship in some states, involves the court-supervised management of assets for a person who becomes disabled and is unable, in the court’s opinion, to manage property on their own. Death probate involves the transfer of property upon the death of the one who owns property in his or her own name. Since these two types of probate are very different, I’ve broken them down into “Death Probate” for death probate and “Guardianship” for living probate. a. Death Probate Death probate is the administration of a person’s affairs after they are dead, primarily to remove the decedent’s name from titled property.
The primary function of probate is transferring title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate. Another function of probate is to provide for the collection of any taxes due by reason of the deceased’s death or on the transfer of their property. The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from contacting heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
Probate is necessary to wind up the affairs the decedent leaves behind. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will. What is a Will? A will is a writing, signed by the decedent and witnesses, meeting formal requirements set forth by Florida law. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the automatic provisions set forth under Florida law. In the absence of a valid will, or if the will fails in either respect, Florida law designates the beneficiaries and designates the way to select the personal representative.
Probate is necessary when a person owns property in his or her own name and either dies or becomes disabled. There are two types of probate. Living probate, called guardianship in Texas, and conservatorship in some states, involves the court-supervised management of assets for a person who becomes disabled and is unable, in the court’s opinion, to manage property on their own. Death probate involves the transfer of property upon the death of the one who owns property in his or her own name. Since these two types of probate are very different, I’ve broken them down into “Death Probate” for death probate and “Guardianship” for living probate.
