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Probate 101: What to Know About the Process

Fri, Apr 15, 2022 at 2:50PM

Probate 101: What to Know About the Process

Probate is a judicial process determining how to dispose of assets after someone's death. Not all assets need to go through probate. Some properties can pass automatically, while other properties will require a judge's order to pass.

Read on for an overview of probate in Volusia County.

How Probate Starts

The Florida legislature divided the state into 20 judicial circuits. These judicial circuits have jurisdiction over cases that arise within their boundaries. 

If the deceased person had a will, you or the decedent's Daytona Beach wills lawyer could file a petition with a copy of the will. If the decedent left no will, you could file a petition without attaching a will.

Volusia County does not have dedicated probate judges. Instead, the circuit court judges get assigned probate cases in the regular judicial rotation.

Issues Resolved During Probate in Volusia County

A probate proceeding will address and resolve several issues, including:

  • Appointing a personal representative, or executor, to handle the estate
  • Validating claims from creditors
  • Authenticating the will and resolving challenges to it
  • Identifying heirs of a decedent without a will
  • Resolving disputes between claimants to an estate

Ultimately, the probate judge will provide the personal representative with clear instructions. The representative will follow these instructions to transfer or liquidate the estate's property. These instructions will tell the personal representative what to do with the proceeds of any liquidated property.

Probate Avoidance

As you plan your estate, you probably cannot avoid probate entirely. Personal property and sentimental mementos usually get passed through a will that must get probated.

But probate introduces uncertainty to your estate plan. And the estate must pay to hire a lawyer for the personal representative. Minimizing the property that goes through probate will reduce costs and ensure your wishes get carried out.

Some ways to reduce the assets that go through probate include:

Create a Trust

When you put property into a trust, you no longer own it. The trust owns the property, and you benefit from it. When you die, the trust will dispose of the assets as directed in the trust instrument. Since you did not own the assets when you died, the assets do not go through probate.

Hold Property Jointly

Any property you own jointly with another person, such as a spouse, will pass to the joint owner automatically. The right of survivorship transfers ownership without a judge's order. Thus, jointly held assets with a right of survivorship will not go through probate.

Name Beneficiaries

If you name a beneficiary in your insurance policies and financial accounts, the financial institution can transfer ownership without waiting for a probate proceeding. But if you fail to name a beneficiary, the money gets added to your estate and must go through probate.

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