Unless one has dealt with the death of a loved one before, few people know what should be done to manage the decedent’s assets.
To determine whether action through the court is necessary, one needs to look at deeds to real property, bank records, stock records, life insurance policies, IRA’s and tax-deferred retirement accounts to see whether the assets are registered in the decedent’s name alone, or jointly with another, and if a surviving beneficiary is named in the life insurance policy and tax-deferred retirement accounts.
If real property is in the decedent’s name alone, a court proceeding will be required in the probate division of court in the county where the decedent had his/her principal residence.
But if the deed to real property is in the name of the decedent and spouse as husband and wife, the surviving spouse will receive ownership of the property by having an attorney prepare 2 affidavits and recording them with the death certificate in public records without probate.
On bank accounts and brokerage accounts held as husband and wife or in the name of the decedent and another as joint tenants with right of survivorship, all the survivor need do is present the bank or broker with a certified death certificate and proof of the survivor’s identity.
It is also important to locate the decedent’s original and most recent last will and testament. Florida law requires the last will to be placed on deposit with the court clerk of the county of the decedent’s principal residence regardless of whether probate is necessary or not. Wills are frequently kept in a bank safe deposit box, a home safe, and sometimes at the attorney’s office.
If no will can be found, Florida statutes provide how the estate will be distributed. Even when the decedent left a will, Florida statutes provide protections for the surviving spouse and the decedent’s dependents in addition to what may be in a will. There are time limits, so benefits can be lost by delay.
Having collected all the information you can, you should consult with a probate attorney in the county of the decedent’s principal residence. The probate attorney can explain your options in your particular case.
Many simple estates never require a probate action if assets are held in a form that provides for survivorship or designates a beneficiary who is still alive.
My next blog will review the reasons one should not prepare and sign a deed adding joint tenants to avoid probate unless they have consulted with an attorney to review possible adverse consequences the deed may have.