When it comes to the probate process, it is always good to start with the basics and get a clear understanding of the terms you will be hearing. I recorded this video interview with John Anker from the Law Office of Saunders & Ankner to get you some clear definitions of common Probate terms. Below is a list of terms that are discussed in the video interview. If you have specific questions in regards to probate and/or estate planning, John is a great resource to reach out to.
The Law Office of Saunders & Ankner, PA
321-319-0459
John@lawsaunders.com
As always, if you need help selling a home that is currently in probate or that you have inherited, it would be my team’s honor to help you and your family successfully navigate the sales process.
Sincerely – Mark Ramey
Probate
Probate is the legal process of administering a Last will and Testament, which means verifying that the will is legal, that the deceased person’s intentions are carried out by the court, and that the deceased person’s assets are distributed according to their will, subject to certain limitations and statutory requirements. Probate also occurs when there is no will and a probate court must decide how to distribute the assets of the deceased’s estate to his or her heirs, this distribution will occur according to the statutes in the relevant jurisdiction.
Personal Representative/Executor/Administrator
A personal representative, executor, or administrator for the estate of a deceased person carries out the work of administering the estate of the deceased individual. A personal representative is also an individual with the authority to make decisions for the estate, in accordance with the will or the relevant statutes. Specifically, that person (it could be one or more individuals, a bank or trust company, or both) acts for, or on behalf of the estate in accordance with the terms of the will, or in accordance with the relevant statutes.
Beneficiary
The individual or individuals that have been designated to receive items from an estate. A person who receives assets through inheritance is called a beneficiary.
Will/Last Will and Testament
A Will or Last Will and Testament is a legal document that expresses a person’s wishes as to how their property is to be distributed after their death and as to which administrator is to manage the property until its final distribution. A will can only be enforced through a probate court.
Heirs/Heirs at Law
Those persons, including the surviving spouse, who are entitled to the property of a decedent under the will, the intestacy statutes of the relevant jurisdiction, or both.
Trustee/Co-Trustee
The designated individual or individuals who manage and/or distribute another person’s assets according to the instructions in the Trust document.
Decedent
A decedent is a legal term used by professionals in estate planning and law fields for a deceased person.
Domicile
Domicile is a person’s permanent home, the place to which they intend to return if they are temporarily residing in another place, or even another state or country.
Estate
The sum total of property and possessions of a person at the time of their death. After death, all of the property of the decedent passes into their estate, which would then be subject to probate proceeding so that those assets, property, and possessions can be distributed to their heirs and/or beneficiaries.
Non-Probate Estate
Not all property a person leaves behind is covered under the probate process and is therefore not a part of the probate estate. Property that has transfer-on-death beneficiaries (Rights of Survivorship), such as life insurance policies or property owned by a revocable living trust is transferred outside of probate.
Life Estate
A life estate is a form of real property ownership. A life estate provision in a deed permits the property owner to have possession of their property until their death, at which point the ownership of the property is automatically transferred to the beneficiary. The holder of a life estate has certain limitations on how they can use their property, and must have the permission of the beneficiaries, referred to as remaindermen, to sell that property.
Testate
Having left a will at death
Intestate
Dying without a will
Summary Administration
A type of probate that involves the least amount of court involvement. Summary Administration is a procedure available for the administration of estates under $75,000 or when the decedent has been dead for more than two years. It avoids the necessity of the appointment of a personal representative. In Florida a parson’s homestead property, typically their primary residence, is exempt when calculating the $75,000 maximum for summary administration.
Formal Administration
The primary form of probate that applies to probate estates in Florida. Formal administration is supervised by a Florida circuit court judge. The judge will determine if the last will and testament meets legal standards, determine if the personal representative is capable, and issues letters of administration. Once appointed, the Personal representative’s job is to fully administer the estate by securing assets, determining and settling debt with creditors, and ultimately distributing what’s left to the beneficiaries. This is a more complex process, and it is recommended that the Personal Representative retain an attorney to help them with the process.
Ancillary Administration
Required when the decedent owned real estate in a state or county other than the state or county where the decedent lived. Real property that has been titled in the name of a trust or business entity, or real property that is deeded to joint owners with rights of survivorship, or to a married couple as tenants by the entireties typically does not need to be subject to an ancillary administration.
Letters of Administration
The legal documents a court gives the estate administrator or personal representative. The letters of administration give the personal representative the legal authority to take possession of estate property, use estate funds to pay for expenses and transfer estate property to the heirs or beneficiaries, or to sell estate property in accordance with the terms of the will.
