Probate is the process by which a court verifies the validity of a deceased person’s will and decides how his or her estate should be distributed. Depending on the circumstances of each case, probate may be a lengthy and expensive process.
In this article, you will discover what exempt property is in Florida probate.
Probate-Exempt Assets in Florida – Understanding the Concept
When someone dies owning assets solely in his or her name, these assets will likely go through probate. The decedent’s will should provide how his or her asset should be distributed.
If there is no will, the decedent’s estate will be distributed according to Florida intestacy laws. There are two types of probate in Florida – summary administration and formal administration.
Under specific circumstances, an estate is not subject to probate. Florida Statutes §735.301 (1) provides that “no administration shall be required, or formal proceedings instituted upon the estate of a decedent leaving only:
- Personal property exempt under the provisions of s. 732.402
- Personal property exempt from the claims of creditors under the Constitution of Florida
- Nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness”
Exempt Property in Florida Probate – As Provided by Law
As provided by Florida Statutes §732.402 (1), “if a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate (…) to be designated “exempt property.”
Florida Statutes §732.402 (2) specifies that “exempt property shall consist of:
- Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death
- Two motor vehicles as defined in Fla. Stat. §316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles
- All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986
- All benefits paid pursuant to Flat. Stat. §112.1915 (educator death benefits)”
Florida Statutes §732.402 (4) adds that “exempt property shall be in addition to protected homestead, statutory entitlements, and property passing under the decedent’s will or by intestate succession.”
Is It Possible to Transform Probate Assets into Non-Probate Assets in Florida?
With proper legal counseling, it is possible to “transform” probate assets into non-probate assets. In Florida, there are several legal tools to protect specific assets from probate and ensure a seamless distribution process upon death. The list of non-probate assets includes:
- Real estate owned in joint tenancy or tenancy by the entirety
- Assets held in a trust
- Retirement accounts
- Bank/brokerage accounts with payable-on-death (POD) and transfer-on-death (TOD) beneficiaries
- Life insurance or brokerage-related accounts with beneficiaries that are not the decedent
- Bank/brokerage accounts under joint tenancy
The best approach to identify whether an asset is subject to probate is to consult with a Florida probate attorney.