WHAT ARE PROBATE ASSETS?
Probate assets are those assets that were owned in the decedent's sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
WHY IS PROBATE NECESSARY?
Probate is necessary to pass ownership of the decedent's probate assets to the decedent's beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent's beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent's probate assets to those who are to receive them under Florida law. Probate is also necessary to wind up the decedent's financial affairs. Administration of the decedent's estate ensures that the decedent's creditors are paid if certain procedures are correctly followed.
WHO IS INVOLVED IN THE PROBATE PROCESS?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent's estate:
- Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent's death.
- Circuit court judge.
- Personal representative (or executor).
- Attorney providing legal advice to the personal representative throughout the probate process.
- Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
- Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent's probate estate may owe and, sometimes, federal gift, estate or generation-skipping transfer tax matters.
WHAT IS A TRUST?
A trust is a fiduciary arrangement allowing assets to pass outside of probate. In a trust, the Trustee holds assets on behalf of beneficiaries. Trusts may be established in various ways and allow Settlor to specify exactly how and when the assets are distributed to the beneficiaries. Trust administration is the management and distribution of trust property.
WHAT ARE THE BENEFITS OF TRUST?
Since trusts usually avoid probate (saving time and court fees), beneficiaries may gain access to assets more quickly than they might to assets that are transferred via a Last Will and Testament. Trusts give the Settlor more control over distribution of assets after death. Depending upon the type of trust established other benefits may apply.