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Probate is the legal process for distributing the assets of an estate to the heirs of the estate. It requires a 90 day Notice To Creditors to establish what is owed by the deceased prior to making a distribution of the assets. It requires a Personal Representative (PR) or an Executor (depending on the state). While you should have a will it is not necessary. If there is no will, then the deceased left the assets “In Testate.” The PR or Executor needs to establish the value of the assets or sell the assets and place the monies in the Court Registry. Assets not subject to probate are 401K or IRA accounts, life insurance proceeds, property held in Payable Upon Death accounts and Homestead property. Once the 90 days is passed and all the Creditors have identified themselves the PR can then petition the court to distribute the remaining assets to the heirs assuming no heir contest the Will or the distribution of assets.

There are two levels of Probate in Florida. One is Formal and the other is Summary. If the total value of the estate is less than $75,000 then a Summary Administration can be done which is much faster and cheaper.

Trusts on the other hand do not go through probate. The person passed but the Trust is a separate legal entity that does not die when the creator of the trust dies. In order for a Trust to be brought to life there must be assets placed in the Trust. Just having a written Trust document does not create a trust. Assets placed in the Trust are normally houses, land, stocks, bonds, checking accounts and the like. Normally disposable or depreciating items such as cars are not placed in the Trust. A Trust must have a Successor Trustee identified. This is the person(s) that will distribute the assets. The Trustee must be someone you have utmost faith in to carry out your wishes. Institutions, such as banks, can be named as the Successor Trustee but they charge an annual fee based on the asset value.

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