Are you wondering how to differentiate which assets are considered probate assets? Typically, probate assets consist of property that was owned by the decedent in Florida and was titled in the decedent’s individual name at the time of his or her death. Watch our short video about probate assets by clicking here.
An example of probate assets:
- bank/brokerage accounts titled in decedent’s sole name
- automobiles (note that a probate is not always necessary for transferring title to automobiles)
- life insurance policies, annuity contracts & individual retirement accounts titled in the decedent’s sole name that are payable to the estate
- non-homestead real property that is either titled:
- in the decedent’s sole name
- in the decedent’s individual name and another person as tenants in common (TIC)
- “pay on death” or “transfer on death” accounts
An example of non-probate assets:
- bank/brokerage accounts titled in trust or joint with rights of survivorship
- life insurance policies, annuity contacts & individual retirement accounts titled in the decedent’s sole name or trust but are not payable to the estate (i.e., payable to a child or trust)
- exempt homestead real property (note that homestead property has its own set of complex rules that apply in certain situations)
My Dad Had A Revocable Trust But Some Of His Assets Were Not Titled In The Name Of The Trust. Do I Have To Open A Probate?
If the assets were titled in your dad’s individual name and there was no beneficiary designation, then yes, you have to open a probate.
Often times we see individuals go through the process of creating a revocable trust but the trust never gets “funded.” By “funded” we mean, the assets were not formally re-titled into the name of the trust. For example, let’s say that you have a bank account and it titled “John Doe.” Now, let’s go one step forward and say you have a revocable trust. Just because you created a revocable trust does not mean that that bank account is “in your trust.” You must complete the necessary paperwork at your financial institution to have the account re-titled into the name of your trust. This step is called “funding your trust.”
Keep in mind that depending on the total value of the assets you may qualify for a shortened form of probate called Summary Administration.
Why Is Probate Even Necessary?
If the decedent’s assets fall into the above-discussed criteria, then a probate is necessary in order to pass ownership of those assets to the decedent’s beneficiaries. Probate also helps with eliminating any potential creditor issues the decedent may have had in order to protect the beneficiaries.
Any other questions?
About Oakstone Law, PL
Oakstone Law PL was founded by Bob Kleinknecht. A member of the Florida Family Trust Company Subcommittee, the Estate Tax & Trust Planning (ETTP) Committee and the Real Property, Probate & Trust Law (RPPTL) Section of the Florida Bar, Kleinknecht has 15 years’ experience.
Prior to founding Oakstone law, he spent more than eight years serving as a personal, in-house estate, tax and charitable planning attorney for a Forbes 400 family in New York and Florida. Before that he was an estate planning and estate settlement attorney with prominent firms in Boston and Washington, D.C. after beginning his career with a boutique firm in Naples, Florida.
Licensed in Florida and Massachusetts, Kleinknecht has developed a practice model that eliminates billing by the hour and offers a streamlined, customized client process supported by technology, security and a personal approach.
For more information on Oakstone Law, click here. To get in touch with us, click here to send us an email, or call 239-206-3454. Our office is located at 5137 Castello Drive, Suite 2 in Naples, Florida 34103.