What assets are probate assets, subject to probate administration, is an initial question in every probate administration in Florida. Probate assets are assets owned by the deceased at death – but only those assets that do not transfer automatically to someone else upon death.
The easiest way to understand which assets are subject to probate administration and which are not is to start with those assets which are not probate assets. Download the Assets of the Deceased Diagram for easy reference.
Joint Title With Right of Survivorship
The title of an asset, which typically denotes ownership, in the name of two or more persons. Real estate and bank accounts can be titled jointly with right of survivorship. When one owner passes, the remaining owner automatically becomes the owner of the asset. An asset that is titled jointly with right of survivorship is not a probate asset.
In some instances, it is not clear whether or not the joint title is intended to be one of survivorship, as opposed to a tenancy in common, or a convenience bank account.
Assets within a revocable trust will be distributed by the trustee of the trust to the named beneficiaries as stated within the trust document. The assets in the revocable trust will not be probate assets.
Pay on Death / Transfer on Death
Banks and brokerage firms typically offer the ability to include a “pay on death” or “transfer on death” designation. Upon the death of the original owner, the bank or brokerage will simply give the account to the listed pay on death owner of the account.
Life insurance, annuities, IRA’s and retirement accounts will typically give the owner of the asset the ability to name a beneficiary upon the death of the owner. An asset with a beneficiary designation will not be a probate asset (unless the probate estate is listed as the beneficiary).
Tenancy By the Entireties
If a married couple owns an asset together, it will be treated as a tenancy by the entireties asset. The surviving spouse will become the owner of the asset upon the death of the first spouse. Any jointly owned asset will be treated as a tenancy by the entireties asset unless the asset is specifically titled in another fashion.
The primary residence of a Florida resident will be treated as Florida homestead property. Homestead property has its own set of of complex rules that will apply if the deceased had a surviving spouse or minor child at the time of death.
If an assets does not transfer to new owners by one of the methods set forth above, the asset is likely a probate asset, and will need to by administered in the probate process.