Probate

Probate Overview:

In Florida, probate is a court-supervised process that entails gathering assets of a decedent, paying or settling the decedent’s debts, and distributing the individual’s assets to the appropriate beneficiaries or heirs at the time of his or her death. The decedent’s assets first pay for the cost of the probate administration and the decedent’s funeral expenses, followed by the decedent’s other outstanding debts. The remainder of the assets are then distributed to the beneficiaries. Generally, an individual named in the Last Will and Testament as the personal representative (a.k.a. the “executor”) is responsible for handling the probate administration.

In most instances, Florida law requires the personal representative to have an attorney guide them through the probate process. The personal representative is also generally permitted to cover the cost of the attorney with estate assets, so it is not a personal expense for the personal representative. Having an attorney representing you in your capacity as personal representative is a major benefit, as the attorney will assist with the probate procedure, protect your interests as executor, prepare and file the necessary documentation with the Court, provide statutorily required notice to beneficiaries and creditors, attend required hearings and further guide you through the legal nuances and intricacies of the probate process.

Here at e-Estates and Trusts, our goal is to guide busy individuals through the probate administration process in a streamlined and efficient manner. If you have been named as a personal representative, the responsibility can be overwhelming, especially if the case is complex, there are numerous assets or there is disagreement amongst the beneficiaries. Because we have been in the business for a combined 25 years, we fully understand and appreciate the numerous issues faced by personal representatives, including the grieving process, assuming fiduciary responsibilities and financial liability, navigating and preserving familial relationships, and the like, and we take pride in providing our clients with clear direction and making the estate administration process as smooth as possible.

Complete our COMPLIMENTARY ESTATE EVALUATION to see if you qualify for a or Book Complimentary Estate Administration Consultation Now with one of our experienced probate and trust administration attorneys.
 
When May Probate Be Necessary?
– To transfer ownership of a decedent’s asset to the decedent’s beneficiaries.
– To wind up or conclude the decedent’s financial affairs by ensuring proper creditors are paid.
– If a loved one passes away owning assets in his or her individual name.
– If a loved one passes away and names you as personal representative in his or her Last Will & Testament.
– If a loved one passes away without a Last Will & Testament.
– If you are a named beneficiary in a decedent’s Last Will & Testament.
– If a Florida Resident passes away with an out-of-state Will.
– If a non-Florida Resident passes away and owns real estate or other assets located in Florida.
– If an individual passes away and is survived by a spouse and/or minor children.

Some assets do not require a probate proceeding to transfer ownership. For specific guidance as to whether probate is necessary for you, take our COMPLIMENTARY ESTATE EVALUATION or Book Complimentary Estate Administration Consultation Now to schedule a consultation with one of our experienced probate, trust and estate administration attorneys.

What is a Will?
A valid Last Will & Testament is a writing that is signed by a decedent and witnesses, and meets Florida law requirements. A decedent will generally name the beneficiaries to receive assets and also designate a personal representative (a.k.a. an “executor”) to administer the decedent’s estate.

What Happens if There is No Will?
If you die in the State of Florida without a Will, it is called dying “intestate.” Under these circumstances, the State of Florida writes a Will for you and heirs are determined by Florida Statute. Even if a decedent dies without a Will, assets are rarely turned over to the State. In fact, the State would keep the decedent’s assets only if the decedent died with no heirs.

Where are Probates Filed?
A probate proceeding is generally filed with the Clerk of Court in the county where the decedent resided at the time of his or her death. If an individual resided out of state at the time of his or her death, a probate proceeding will be filed with the Clerk of Court in the county where the decedent owned real property or other assets. Any individual in possession of a decedent’s original Last Will & Testament must deposit the Will with the Clerk of Court in the County where the decedent resided at the time of his or her death within ten (10) days of receiving information of the decedent’s death.

What are Probate Assets?
Assets that must be included in the probate process are those assets that the decedent owned in his or her name alone at the time of death that did not include a provision for the automatic transfer of ownership at death.

What are Non-Probate Assets?
Non-probate assets are not subject to the probate process. Rather, these assets will pass by operation of contract or by operation of law to the person or persons named as beneficiaries or to joint-owners, all outside of the provisions of a Last Will & Testament. Individuals receiving non-probate assets are not required to share those assets with beneficiaries of the probate estate and are generally also not required to use those assets to pay claims against the estate.

Here are some examples of non-probate assets:
– Bank Accounts that are “payable on death” (a.k.a. “P.O.D.”) to a named beneficiary
– Brokerage Accounts that are “transferrable on death” (a.k.a. “T.O.D.”) to a named beneficiary
– Retirement Accounts with a named beneficiary
– Annuities with a named beneficiary
– Life Insurance Policies with a named beneficiary
– Real Property or Personal Property owned as “joint tenants with right of survivorship” (a.k.a. “J.T.W.R.O.S.”)
– Real Property or Personal Property owned as “tenants by the entirety” (a.k.a. “T.B.E.” or “as husband and wife”)

Keep in mind that sometimes when designated beneficiaries die before the decedent, those assets may be included in the decedent’s probate estate. Additionally, where the joint-owner of a particular asset dies before the decedent, that asset may also be included in the decedent’s probate estate.

What are the Different Types of Probate in Florida?
There are several different types of probate administrations in Florida. Deciding which form of probate administration is appropriate is a complex legal determination made based upon several variables including the size of the estate, kinds of assets in the estate, whether there are creditors of the estate, and the amount of time since the decedent’s death.

Formal Administration: These proceedings are the most common in Florida and are generally used where there are numerous assets or the decedent died owing money to creditors. In a Formal Administration, a personal representative (a.k.a. an “executor”) will be appointed by the Judge and Letters of Administration will be issued. The personal representative will gather estate assets, pay or settle the decedent’s debts and ultimately distribute assets to the beneficiaries. Formal Administrations generally take 8-12 months to conclude.

Summary Administration: These proceedings are generally used where the value of the entire estate, not including exempt assets such as homestead property, does not exceed $75,000.00 and the decedent’s debts are paid, or the creditors do not object. Summary Administration is also available, regardless of the value of the assets, where the decedent died more than two (2) years ago. In a summary administration, there is no personal representative appointed. Rather, a petition is filed requesting that the Court distribute the assets in the decedent’s estate to those entitled to same under the Will or in accordance with Florida law. If the Court approves the petition, the Judge will enter an Order of Summary Administration that directs the distribution of assets to the proper beneficiaries. Summary Administrations are an expedited form of probate and generally take between 2-10 weeks to conclude.

Disposition of Personal Property Without Administration: This proceeding is generally filed to request the release of assets to the person who paid the final expenses, such as funeral or medical bills for the last 60 days. You may qualify for this proceeding if you meet the following criteria:
a. The value of the assets are less than $6,000,
b. You paid the final expenses, such as funeral bills or medical bills for the last 60 days; and
c. These expenses are close to the value of the asset you are trying to obtain.

Ancillary Administration: These proceedings are used when a non-Florida Resident passes away owning assets, generally real property or real estate, located in Florida. If a probate was conducted in the decedent’s state of residence, the ancillary administration can proceed in Florida. If there was no probate administration in the decedent’s home state, the Florida procedure is called a non-domiciliary probate.

We see a substantial number of ancillary administrations and non-domiciliary probates because many out-of-state residents own vacation homes, condos or timeshares here in sunny Florida. Probate is an incredibly complex legal process and if not handled properly, can leave the personal representative or executor open to personal financial liability, not to mention potentially ruining family relationships. Complete our COMPLIMENTARY ESTATE EVALUATION to see if you qualify for a or Book Complimentary Estate Administration Consultation Now with one of our experienced probate and trust administration attorneys.

What is a Personal Representative?
A personal representative is the person or entity appointed by a Judge to be in charge of a formal probate administration. Personal representative is Florida’s term for executor, executrix or administrator. The individual named as personal representative has a legal obligation to administer the probate estate properly and in accordance with applicable Florida law.

What Does the Personal Representative Do?
In a formal administration, a personal representative is responsible for:
– Identifying, gathering, valuing, safeguarding and preserving the decedent’s probate assets.
– Managing any assets such as investments or real estate while the Will is being probated.
– Filing all necessary pleadings and other documentation with the Court.
– Hiring various professionals to assist in administering the estate including attorneys, accountants (CPAs), appraisers and financial advisors.
– Serving a “Notice of Administration” on required parties to provide information about the probate estate administration and advise of procedures to file an objection to the estate.
– Conducting a diligent search to locate known or “reasonably ascertainable” creditors and provide those creditors with required notice as to the time by which their claims must be filed.
– Publishing a “Notice to Creditors” in a local newspaper to provide notice to potential creditors of the requirements surrounding filing a claim.
– Objecting to improperly filed creditor claims.
– Selling assets to satisfy claims against the estate, if necessary.
– Paying valid creditor claims.
– Filing the decedent’s final income tax return and any fiduciary tax return(s) required, and paying any due taxes.
– Paying the expenses of administering the probate estate, such as court filing fees, the cost to publish the Notice to Creditors, etc.
– Paying statutory amounts to the decedent’s surviving spouse or family, as required by Florida law.
– Distributing the remaining probate assets to beneficiaries.
– Concluding and closing out the probate estate.

Personal representatives owe a fiduciary duty to the estate beneficiaries and creditors. If the personal representative mismanages the decedent’s probate assets, he or she may be personally financially liable to the estate beneficiaries for any harm they incurred as a result of such mismanagement. Most personal representatives hire an estate administration attorney to guide them through the probate process.

Who Can Serve as a Personal Representative?
Florida law has very specific requirements for an individual to be eligible to serve as personal representative:
1. They must be at least 18 years old;
2. They must be a Florida resident or related to the decedent by blood, marriage or adoption;
3. They must be physically and mentally capable of carrying out the duties required of a personal representative; and
4. They have never been convicted of a felony.

Do I Need a Lawyer for Florida Probate?
Yes, in almost all instances you will need a Florida Probate Attorney. Florida law actually mandates the assistance of an attorney in all probate matters except for dispositions without administration and estates in which the personal representative (a.k.a. the “executor”) is also the sole beneficiary. Even where an attorney isn’t required by Florida law, formal administrations have a number of technical rules and requirements that are difficult for a non-attorney to navigate. Florida’s body of probate laws is far too complex for many personal representatives to follow without legal counsel and guidance, not to mention the Courts are not permitted to provide legal advice regarding probate proceedings.

How We Operate:

To best serve our clients, we set aside blocks of time to speak with clients via telephone or video conference. If you would like to confer with one of our experienced attorneys, please select one of the options below:
 
Existing Client Conference – During this call, you will receive an update on your legal matter and can ask any questions you may have. Check-In Calls are scheduled for 15 minutes and are only available for existing clients who have signed an Employment and Fee Agreement with our firm.
CHECK IN  

Estate Planning Consultation – During this conference, we will discuss your personal and family dynamics, assets, liabilities and overall goals to develop your individualized estate plan. To make the best use of our time during this conference, potential clients submit a completed Estate Planning Questionnaire prior to the scheduled consultation.
Estate Planning Questionnaire  

 
Estate Administration Consultation – During this conference, we will assess your case to determine whether we will be able to assist and to begin developing a legal strategy for your matter. In order to make the best use of our time during this call, potential clients submit a completed “Estate Administration Questionnaire” and any Last Will & Testament, Trust Agreement, Separate Writing Regarding Tangible Personal Property, or any other estate planning documentation the decedent had in place through our secure client portal .
Estate Administration Questionnaire