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Common Probate Terms

Probate Vs. Non-Probate Assets

Part of the probate process is determining which assets will be distributed by the court. Generally, if an asset is titled only in the name of the decedent, without naming any beneficiaries, then it will be distributed through the probate court.

Intestate vs. Testate

A probate administration can be guided either by a valid will (Testate) or by the statutes that govern probate proceedings in the state of Florida (Intestate). In the State of Florida, a will is considered valid when it complies with the following requirements:

  • Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.
  • The testator must sign the will at the end; or
  • The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
  • The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

In the case that there is an invalid Will or no Will exists, the laws of intestacy, enacted by the State of Florida, determines the distribution process.

Summary vs. Formal Administration

Within the probate system, there are two types of administration that can be applied to probate cases: summary and formal administration. Formal administration can be applied in all estates whereas summary administration has certain restrictions. An estate can be administered under a summary administration if the decedent died more than 2 years from the date of filing or if the estate has less than $75,000 in non-exempt assets. Summary and formal are both distinct types of administration that can achieve certain goals depending on the estate's needs and circumstances.

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