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How Are Non-Probate Assets Distributed in Florida


When a Florida resident dies, an estate may be opened to dispose of any probate assets they owned. Note the qualified “probate assets.” A person may have owned or controlled a substantial amount of property during their lifetime yet left no probate assets for their estate. The reason this is possible is that there are a number of ways to hold property as a nonprobate asset.

How Do You Know If Something Is a “Non-Probate” Asset?

A probate asset is any property–real, tangible, or intangible–that is owned in the sole name of the decedent at the time of their death, or which the decedent co-owned with others in a manner that did not provide for automatic succession of ownership upon death. For example, if you own stock in a corporation in your sole name, that is a probate asset, even though multiple other people may own stock in the same corporation. But if you have a life insurance policy that names your spouse as beneficiary upon your death, then that is a non-probate asset.

Some of the more common examples of non-probate assets in Florida include:

  • any bank or brokerage account that has a joint account holder or lists a “payable on death” or “transfer on death” beneficiary;
  • retirement accounts, such as an IRA or 401k;
  • life insurance policies;
  • property owned in a joint tenancy with survivorship rights;
  • property subject to Florida’s homestead exemption;
  • property subject to a Florida enhanced life estate deed; and
  • assets transferred to a living trust before the decedent’s death.

To briefly elaborate on some of these categories:

  • Married couples often own their home and other real estate as “tenants by the entirety,” which is a kind of joint tenancy. When one spouse dies, the other spouse automatically succeeds to sole ownership of the property without having to go through probate.
  • If a life insurance policy, retirement account, or similar asset names the account holder’s probate estate as the beneficiary, in that case it would be considered a probate asset.
  • Many living trusts are paired with a “pour-over” will, which directs any probate assets to be transferred to the trust upon the decedent’s death; a probate estate is still necessary to accomplish this transfer.
  • An enhanced life estate deed–sometimes known as a “Lady Bird Deed”–basically means that you grant someone, such as a spouse, the right to continue living in your home after your death, and after they die or vacate the property, the home will then pass to a beneficiary.

Contact Florida Trust and Estate Litigation Attorney Mark R. Manceri Today

Even when it appears there are no probate assets in a potential estate, there can still be disputes and disagreements that arise between potential beneficiaries. Indeed, it is not uncommon to identify potential probate assets after a person’s death, which require the opening of a probate estate. If you are involved in such a matter and need legal advice or representation from a qualified Pompano Beach probate vs. non-probate assets lawyer, contact Mark R. Manceri, P.A., today to schedule a consultation.

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