By reading through these Florida Probate frequently asked questions, you can know what to expect after the death of a loved one or when deciding what routes to take with estate planning.
If you have any further questions or require expert legal advice, feel free to contact our Florida probate attorneys for a free consultation. Let’s jump into our Florida probate FAQs:
Florida Probate FAQs:
What Is Probate in Florida?
Probate is the name of the court-supervised process of proving a Will, identifying and gathering the decedent’s assets, paying creditors and distributing the remaining estate fairly by following the instructions of the Will.
If there is no Will left behind, the probate court will determine how the estate is shared and to who.
What Types of Probate Exist in Florida?
In Florida, there are two types of probate administration: Formal Administration and Summary Administration.
What Is Formal Administration?
Formal Administration is the traditional type of probate. A personal representative (also known as an executor) is only appointed in this form of probate.
What is Summary Administration?
Summary Administration is the shorter form of probate designed for estates valued under $75,000 or for cases where two years have passed since the date of death.
Personal representatives are not appointed during summary administration.
Why Is Probate Needed?
Probate is required by Florida law to handle the affairs and estate of a decedent. These laws have existed since 1845 and protect all parties – including the Will creator, beneficiaries, legal heirs and creditors.
However, by using certain estate planning tools – such as trusts, you can avoid the requirement of Florida probate and avoid the lengthy and often stressful probate process.
What If There Is No Will?
If the decedent hasn’t left a Last Will & Testament, the assets will likely pass through ‘intestate succession’. Florida Statutes will then decide who inherits the estate and with what share.
How Long Does Florida Probate Take?
This is an essential Florida probate FAQ. The formal probate process usually takes between 3-12 months. The duration varies considerably depending on the size of the estate.
Bigger estates may require extensive processing of assets and creditors and face Will contests or litigation.
Simpler estates are likely to be probated efficiently in just a few months and are usually completed through summary probate.
What Is a Will?
A will is a document created and signed by an individual (and witnesses), that states their wishes for the handling of their estate after their death.
A will must meet the requirements set forth by Florida law, including the circumstances in which it is signed (such as without influence and with a sound mind).
A will designates a personal representative and names beneficiaries who should receive probate assets. A will can also establish trust and a trustee.
In Florida, if a will is deemed invalid, Florida statutes will designate the beneficiaries and determine the distribution of the assets.
How Do I Start the Probate Process?
If you are the personal representative, you can start the Florida probate process by filing documents with the probate court.
The process officially begins here after a petition for administration and an oath of acceptance from the personal representative.
It is highly advised that anyone looking to start the probate process meets with a Florida probate attorney. Our Florida probate attorneys can guide you through the process, ensuring you do everything by law and protect yourself, the estate and the beneficiaries.
Where Are Probate Papers Filed?
Probate papers will be filed with the Clerk of the Circuit Court in the county where the decedent lived.
What Assets Are Exempt From Probate In Florida?
Probate assets are those owned by the deceased that are not set up to transfer automatically to someone else. Probate assets must first pass through probate and be distributed during that process.
There are some assets that are exempt from Florida probate if going to people, including surviving spouses or, if there is no surviving spouse, children of the decedent.
Assets exempt from Florida probate include:
- Home furnishings in the main residence (Up to $20,000 in value)
- Two motor vehicles titled in the decedent’s name, that were regularly used and not weighing more than 15,000 pounds
- Tuition programs, qualified under IRS Code, Section 529
- Types of educator death benefits
- Assets in revocable trusts
- Assets where beneficiaries have been designated to receive the asset upon the owner’s death.
- Transfer on death bank accounts or transfer on death property.
- Joint Title with Rights of Survivorship
- Tenancy by Entireties
We get asked this question a lot, hence why it’s in our Florida probate FAQ list.
If you have any questions or concerns over which assets are exempt from Florida probate, feel free to contact our Florida probate attorneys.
Who Is Involved in a Florida Probate?
The following parties may be involved in the probate process:
- Clerk of the Circuit Court
- Circuit Court Judge
- Personal Representative
- Attorney for the Personal Representative
- Internal Revenue Service (IRS)
- Florida Department of Revenue Surviving Spouse and Children Other Beneficiaries Trustee of Revocable Trust
Who Supervises the Florida Probate Process?
In Florida, probate is overseen by a Circuit Court Judge. They will issue Letters of Administration and hold hearings when required, resolving all issues that may arise during the administration of the estate.
What are Letters of Administration?
‘Letters of Administration’ (LOA’s) are court orders that authorize the personal representative to begin administering an estate. With this authorization, they can discuss financial details with banks and brokerages.
What is a Personal Representative?
A personal representative is a person appointed to be in charge of the administration of an estate. They are often called ‘executors.
If there is no personal representative listed in a Will, the court will appoint a suitable representative.
What Do I Do If I’m a Personal Representative?
If you are listed as a personal representative in a will, you are not required to do anything until officially appointed by a probate court.
If you have been listed as a personal representative, it is highly advised that you speak to a Florida probate attorney who can guide you through the process in line with Florida law.
What Does the Florida Probate Process Include?
Formal administration of Florida probate includes:
- A personal representative meets a Florida probate attorney
- Petition for Administration is filed at the local probate court.
- Heirs are notified of the start of the probate process
- Letters of Administration are issued by the court, authorizing the personal representative to administer the estate.
- Creditors are notified that the probate process has begun.
- Proof of death, such as a death certificate, is shown to the creditors.
- Inventory of the Estate
- Validity of the Will checks
- Creditors are paid. If there are no available funds in the estate, then assets may be sold.
- Federal Estate Taxes are paid.
- Final estate accounting.
- Potential objections.
- Distribution of Remaining Estate
- Closing of the Estate
Is It Ever Too Late to Start Probate in Florida?
No. There is no deadline to start probate in Florida. In some cases, estates have been handled decades after death.
However, complications can arise when initial heirs and children have died after the original decedent.
Contact a Florida Probate Attorney
Although this is an extensive list of Florida probate FAQs, we know it can’t answer questions relating to specific circumstances.
If you’re a personal representative or need any legal advice regarding probate, estate planning or your share of an estate, then you can benefit from expert advice by contacting a Florida probate attorney.
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced attorneys, they can help you navigate the Florida probate process without stress and wasted time.
Schedule a free consultation today to get started or to get any questions answered.