When a loved one passes on, their assets and liabilities don’t pass with them. These assets and liabilities will need to be distributed according to the laws of the state of Florida, under a process called probate administration. Put simply, probate is a procedure in which a court oversees the distribution of a deceased person’s assets and the paying of their debts. However, this procedure can be quite convoluted. It can even be difficult to know if it is necessary, but the experienced probate administration attorneys at Battaglia, Ross, Dicus & McQuaid P.A. are here to help.
Do I Need a Probate Administration Attorney?
Probate administration only applies to probate assets; specifically, assets that the decedent (deceased person) owned solely in his/her name or assets owned jointly by the decedent and another person but lacking an immediate successor of ownership.
There are some types of assets that don’t need to be distributed through probate such as:
- Assets held in a living trust
- If the deceased person designated a specific beneficiary of an asset
• Life insurance or a retirement account
- Property held in joint tenancy
• A house that a couple owns together or a jointly held bank account
Even if you feel certain that the assets in question don’t need probate administration, it’s still a good idea to consult with one of our skilled attorneys in order to clear up any variability that may exist within the law. For instance, you might think a life insurance payout would be rather straightforward, but if the decedent specified the funds to be paid to his estate and not a living person things can get complicated quickly.
Furthermore, some people believe that if there is a written will probate is not necessary, but even this is not always the case. First, anyone in possession of the will of a deceased person only has 10 days after learning of that person’s death to file that will with the circuit court. Failing to do so can have wide-ranging consequences. Titled assets such as cars and homes will not be transferred to their rightful new owners, which can cause a number of problems with registrations and payment of taxes on those assets. Additionally, creditors can continue to claim against the estate of the deceased for payment of debts without the proper closure achieved through probate. Not to mention the simple fact that any heirs to the decedent’s property will not know exactly what they are entitled to receive. Usually, a will stipulates this, but if there are any assets not directly attributed to someone, those assets will have to be distributed following Florida’s laws of intestate succession, meaning probate is required.
Which Kind of Probate Administration Do I Need?
In the state of Florida, there are two distinct types of probate. The type of probate required will depend on your specific circumstances and the assets the decedent possessed at time of death. Probate administration falls into two categories, namely formal administration and summary administration.
Formal administration is necessary when two conditions are met.
- The decedent has been dead for less than two years.
- The total value of the decedent’s estate is more than $75,000.
If you know that your situation meets these two conditions, you will likely need to follow the formal administration process. As with most legal issues, however, there are exceptions and exclusions that need to be considered.
First, under formal administration, we need to take an account of all the decedent’s assets and determine which assets fall within the umbrella of probate administration. This means figuring out how much of the estate involves probate assets. Much like when you receive a paycheck you are told the gross amount (the entire sum before taxes) and the net amount (the sum you receive after taxes), a probate estate is not the gross or entire estate. The probate estate consists of things the decedent owned solely in his or her name. Some examples of this would include:
- A retirement account in which a beneficiary was never named
- A bank account solely in the decedent’s name
Once we know which assets are contained within probate we can move on to the appointing of a personal representative. The personal representative could be a bank, a trust company or an individual and is most often appointed by a judge or a qualified fiduciary. This person or organization is in charge of the administration of the decedent’s estate. Some of the required actions of a personal representative include:
- Valuing and gathering the decedent’s probate assets
- Notifying creditors that probate has been initiated
- File taxes
- Pay claims on the estate
- Distribute assets to beneficiaries
Of course, this is not an exhaustive list as the duties of a personal representative are quite involved. If they are not followed to the court’s approval, there could be issues that may even take years to resolve. Having top-notch probate administration attorneys on your side can not only save you unnecessary hassle they can keep you abreast of any possible pitfalls that may lie ahead.
As with formal administration, there are conditions to be met in order to proceed with summary administration. If some or all of them are met, summary administration can be used. These conditions are:
- The decedent has been dead for more than two years
- The estate is in a testate estate, meaning the decedent had a will and that will does not specify how the estate is to be administered
- The size of the estate is less than $75,000
Disposition of Personal Property Without Administration
While the above two forms of probate administration are the most common there is one other possibility called “disposition of personal property without administration.” This type can be used if the decedent only had property that is exempt from probate or his non-exempt property is valued at usually less than $6000.
Probate Administration Done Properly and Efficiently
The probate administration attorneys at Battaglia, Ross, Dicus and McQuaid P.A. are here to answer any of your questions regarding the probate process and make sure it goes as smoothly as possible. With decades of experience in probate cases, advocating on your behalf to ensure you get exactly what you are entitled to under Florida law is our specialty. Contact us for a consultation and have the specific concerns of your case answered today!