Knowing what Probate is and when it’s required can save your family time, money and stress. Probate can quickly turn into a long-drawn-out process if not handled correctly. Here’s an easy to understand, 101 Probate guide:
What Is Probate in Florida?
Probate is the legal process for identifying, gathering and distributing the assets and estate of a deceased person.
In Florida, this is a court-supervised process that includes recognizing the Will, appointing a personal representative (also known as an ‘executor’), paying the decedent’s debts and following the Will’s instructions to distribute assets to the beneficiaries.
Generally, the decedent’s assets will cover the costs of Probate, their funeral and any outstanding debts. The remainder of the estate will then be distributed to the beneficiaries.
Note, there are two types of Florida probate: formal administration and summary administration.
Formal Administration Probate
Formal administration is necessary if these conditions are met:
- The deceased has been dead for less than two years.
- The total value of the decedent’s estate is more than $75,000.
Summary Administration Probate
Summary administration is slightly different. It’s generally only suitable if the estate’s value is less than $75,000 and if outstanding debts have been paid. Summary administration is suitable for the following conditions:
- The size of the estate is less than $75,000
- The deceased has been dead for more than two years.
- The estate is in a testate estate, where the decedent had a Will that doesn’t specify how the estate is to be administered.
When Is Probate Needed?
Probate may be required to transfer assets to a decedent’s beneficiaries.
If the decedent created and left a valid Will, it should be admitted to Probate by the court. Florida’s probate laws then ensure the process is carried correctly to protect the intentions of the Will and ensure all interested parties are legally protected – from children to creditors.
If the decedent had no Will, then Probate may be required to distribute ownership of assets under Florida law. However, some assets will not require Probate.
Also, every estate with a Will must be filed with the county court after a person’s death. Regardless of whether Probate is required, the Will must be validated by the court.
If any doubt or confusion about whether you or your loved one’s estate will require Probate, you should contact a Florida probate attorney for expert guidance.
Probate can also be avoided if the decedent created a living trust, or if all of the assets can be transferred to one listed beneficiary.
What Goes Through Probate?
Probate only applies to Probate assets. Those are assets owned by the decedent at their death or co-owned by a decedent without any provisions for automatic succession of the asset.
This may include, but not be limited to:
- Bank accounts that are solely owned by the decedent.
- Investment accounts that are owned solely by the decent.
- Life insurance policies, annuity contracts or retirement accounts payable to decedent’s estate.
- Real estate that is titled solely in the name of the decedent or with another person as tenants in common (unless a homestead property).
- Vehicles owned solely by the decedent (note, not all vehicles need to go through Probate. Contact a Probate attorney to see what is relevant to your scenario).
What Doesn’t Go Through Probate?
- Jointly owned real estate, which includes a right to survivorship.
- Bank accounts with assigned beneficiaries, or a ‘Payable on Death’ account.
- Investment accounts held jointly with rights of survivorship.
- Retirement accounts including IRAs and 401(k)s – if a beneficiary is named.
What Is The Probate Process in Florida?
Now you have an understanding of what Probate is, you can make sense of what a typical Florida probate process looks like:
- The personal representative (or executor) meets a Florida probate attorney (in most cases, a Florida probate attorney is required by State law). In the meeting, the attorney will ask and review various critical documents.
- Documents are filed with the Florida probate court, where the process officially begins. A petition for administration and an oath of acceptance from the personal representative are required.
- Beneficiaries of the estate are notified that the probate process has begun.
- The Florida probate court signs Letters of Administration and an Order Appointing the Personal Representative. This acknowledges the representative can open an estate account and deposit the assets for Probate.
- Creditors are notified of the probate process. Creditors have a deadline to make claims. The claims can be paid or disputed.
- Assets can be sold and placed into the estate account.
- The Personal Representative prepares an income tax return and deals with any taxes, including Federal estate taxes.
- A plan is created for the distribution of assets to named beneficiaries.
- If all beneficiaries agree on the plan, then assets are distributed.
- The Florida probate court closes the case, discharging the personal representative.
How Long Does Probate Take?
Probate might look simple enough listed in a nice blog like this, but it’s rarely quick. It can vary in duration depending on the size of the estate, the Will and if there are any disputes.
On average, you can expect a Florida probate process to take around 6 months to 1 year to complete. However, it can take much longer – Jimi Hendrix’s probate process notably lasted decades.
How Long Do You Have to File For Probate in Florida?
Florida law requires that filing a Will at the court is completed within 10 days of a person’s death.
Should I Avoid Probation?
When you Estate planning, considering whether you’d like your loved ones and heirs to avoid Probate is an important decision. Although Probate is not always the calamity it’s made out to be, it can go that way in some families and with complicated estates.
There are routes to avoid Probate, such as setting up a Trust. If you are in the process of estate planning, you should contact a Florida estate planning attorney to determine the best choice for you, your family and your vision.
Contact a Florida Probate Attorney
If your family requires assistance with the probate process or estate planning, then you should contact a Florida probate attorney as soon as possible. Doing so can help your family avoid conflicts and stressful litigation at a time when you’d least like it.
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 start and complete the probate process or tackle any probate litigation issues.
Schedule a free consultation today to get started or to get any questions answered.