Probate may or may not be required depending on the nature of the assets of the estate. In many cases, the decedent has left no “estate assets” to probate because the assets are all owned along with a spouse or other individual as joint tenants (such as a house owned with the spouse). If this is the case, probate will not be necessary because the property will automatically pass to the surviving joint tenant without the need to prove entitlement to ownership through a probate proceeding.

Other examples of property that is not subject to probate are assets with beneficiary designations such as POD bank accounts, as well as life insurance, or retirement plans. Sometimes very large estates will not require probate while very small ones will, depending on how the assets have been titled as well as other factors too numerous to mention. In a probate proceeding, the person nominated by the will, if one exists, is known as the personal representative. His or her job is to administer the estate for the benefit of creditors and the beneficiaries or heirs of the estate.

The PR must use the available assets to pay creditors, estate taxes and costs of administration. If assets remain available, the PR can then distribute the remaining property to the heirs. In Florida, unless the PR is a Florida attorney, it he or she is required by law to have an attorney represent him in the probate proceeding. If there are assets under $75,000, a summary administration (an abbreviated probate proceeding)may be available. This procedure is also available if the person died more than two years ago. An attorney will usually charge a fee based upon the value of the assets contained within the estate as well as based on other additional factors, such as additional petitions that must be filed and whether estate tax returns are required.