Florida Statutes, Section 733.103 Effect of Probate

The purpose of executing a last will and testament is for the testator to make his (or her) wishes clear as to what should happen to his estate after his death. In a will the testator can be very specific as to who gets his property. For example, the testator can choose to leave his house to one person, his cash to another person, and his vehicles to still another person. With a will the testator can also make it clear as to who does not get anything. When properly executed, the directions in a will are legally binding and must be followed. However, before the terms of a will can be followed and title to property transferred to the beneficiaries named in a will, the will must go through a process called probate. If you have questions about how probate works, including the requirements of Florida Statutes, section 733.103- Effect of probate, contact a skilled Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates who understands the legal rules related to probate and who can ensure that your legal rights are protected.

Probate is the process that is supervised by the Florida circuit court during which the decedent’s assets are identified and inventoried, his debts are paid, and his assets are distributed to his beneficiaries. The process is initiated when whoever is in possession of the original will, typically the named personal representative, files the will with the circuit court in the county in which the decedent resided at the time of his or her death. A petition must also be filed to initiate probate. The circuit court judge will review the will to determine if it is valid. If it is the judge will allow the probate proceeding to go forward. As part of the process, the judge must formally appoint a personal representative. If there is a will, the judge will appoint the person the testator named in the will to serve as his personal representative, as long as the person meets the qualifications stated in section 733.303 of the Florida Probate Code. For more information about the qualification requirements to serve as a personal representative, contact an experienced Fort Lauderdale probate lawyer.

While a decedent may have passed away with a variety of types of assets, only certain assets are impacted by the court-supervised probate process. Such assets are referred to as probate property. Probate property is typically property that was solely owned by the decedent. A bank account or investment account in the sole name of a decedent is probate property. On the other hand, a bank account or investment account jointly owned by the decedent and another person such as the spouse, would not be probate property. Similarly, a financial account with a payable on death (POD) or transfer on death (TOD) designation would not be a probate asset.

Life insurance, annuities, and IRAs which have designated beneficiaries are also not probate property. By operation of law such property will go to the designed beneficiary or beneficiaries upon the decedent’s death.

Real estate may or may not be probate assets. It depends on how the property is titled. If the property is titled solely in the name of the decedent, the property is a probate asset. If the real estate is titled in the name of the decedent and another person as tenants in common and the property is not homestead property), the property is a probate asset. Property owned by the decedent as a joint tenant with other people with rights of survivorship is not probate property. Similarly, real estate that is owned by spouses as tenants by the entirety is not a probate asset. Upon the death of the first spouse to die, but goes automatically to the surviving spouse.

Regardless of what a will states, its terms do not prove ownership or the right to possession of property until the will has been admitted to probate in Florida or the will has been admitted to probate in the state where the decedent was a resident. However, as an experienced probate attorney in Fort Lauderdale will explain, once a will has been probated in Florida, that will be conclusive proof of the validity of that will.

1. Venue of probate proceedings: § 733.101, Fla. Stat.
2. Determination of beneficiaries: § 733.1051, Fla. Stat.
3. Persons not qualified: § 733.303, Fla. Stat.

(1) Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.

(2) In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.

In Florida, the probating of a will serves as proof that a will is valid. Thus, before assets can be distributed according to the terms of will, it must first to be probated. Whether you are a personal representative, beneficiary, heir, or other interested party in a probate proceeding, to ensure that you understand the legal requirements and to ensure that your rights are protected, it is important that you discuss the process with an experienced probate attorney who understands the legal requirements of probate, including the requirements of Florida Statutes, section 733.103- Effect of probate. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters related to probate, estate administration, as well as other estate matters. Contact an attorney in our office at 561-710-4000 to schedule a free, no obligation consultation regarding your case.