19 May Does All Personal and Real Property Have to Go Through an Estate When a Person Dies?
Does All Personal and Real Property Have to Go Through an Estate When a Person Dies?
By: Barry E. Haimo, Esq.
May 19, 2015
BARRY HAIMO: Generally, when you pass on any property in your name, whether it’s personal or real property, tangible or intangible property, it’s going to have to go through probate, unless you’ve executed an estate plan, and those assets are owned not by you, but by an estate planning vehicle.
Your “estate” simply refers to all the property that you leave behind when you die. Anything that you can rightfully say you are the owner of—like your home, your vehicle, the money in your accounts, stocks and other interests, and your personal possessions—is included in your estate.
What happens to your property after you die, however, depends largely on the planning that you do beforehand. Choosing which of your assets go to whom is the major focus of the estate planning process.
When you pass away, even if you make a last will and testament, your property will have to be examined and reviewed by the Florida probate courts before it is transferred to your family and friends.
What Is Probate?
Probate refers to the legal process through which a deceased person’s affairs are settled. Importantly, it only applies to assets that remain solely in your name upon death.
Probate courts examine all of the assets held in your estate, and make sure that everything passes legally into the hands of your heirs. No estate is too small or large for the probate courts. Any time a resident of Florida passes away, subject to a few exceptions, before their family and friends can recover the deceased person’s property, it must go through the probate process.
The probate process begins when your heirs retain an attorney to open up an estate with the court. A person is then appointed to administer the estate, called a “personal representative.” This person works with the attorney to oversee the whole process of settling your affairs.
His or her first job will be locating your will. Then the personal representative will identify and gather all of your assets, and file an inventory of your estate with the probate court. They will also have to notify any creditors you might have of the pending estate at your time of death.
Your assets will be pooled together in order to satisfy any creditor claims. Finally, the remaining assets are distributed to your heirs according to the terms of your will.
What Happens If I Don’t Plan My Estate?
If you don’t have a will, your estate will still have to go through probate—it will just become much more complicated. The Florida probate courts will, in essence, hazard their best guess at what you might have wanted. Obviously, most people would rather choose themselves where their property ends up.
The probate process is something that many estate plans try to avoid. Probate proceedings can be long and expensive affairs—they can go on for months or even years, and often require heirs to hire legal representation. Most people who are planning their estate would like to spare their family and friends this trouble.
Proper estate planning is crucial to avoiding probate, and an experienced estate planning attorney is a vital part of this process. There are a number of estate planning tools that your attorney can use to help you gain control of your estate, and ensure your personal and real property ends up where you want it to.
Barry E. Haimo, Esq.