The Ultimate Guide for Probate in Florida
This Complete guide takes you through the procedures and technicalities of the probate process in Florida. Hopefully, this post will answer some of your most pressing questions and may eventually become a resource if you ever want to know the steps of probate in Florida.
What is probate?
Probate is the legal process that ensures the transfer of a decedent’s assets and property to his beneficiaries (if there is a will) or to his heirs (where there is no will). Within the probate process, anyone who claims an estate has ample chance to verify their claims. During probate, the decedent’s estate settles outstanding taxes and debts.
A living person has multiple engagements and affiliations; friends and business partners, assets, and debts. When a person dies, these engagements have to come to a legally accepted conclusion. If the deceased person had an estate plan, then they would have made all the necessary arrangements. However, if the decedent didn’t make any such plans, whatever they acquired during their lifetime in property or debt has to go through a transition and settlement.
When is probate necessary?
Death could occur at any time, and for this reason, many individuals pay attention to estate planning long before they die. In cases where the decedent planned their estate properly, their assets will not be subject to probate. Even when there is some sort of estate planning, there are still some situations where probate is unavoidable; these include:
- Wrongful death claim: If a person’s death can be blamed on another person’s negligence, say an employer or neighbor, the decedent’s personal representative can sue whoever is responsible for damages. Once the legal action filed against the wrongdoer has been determined, any monetary compensations awarded to the estate will be disbursed among beneficiaries. The probate court must approve this disbursement via a wrongful death claim.
- If the decedent was involved in litigation: Probate may be unavoidable if a deceased person was under litigation before death. The other party in the litigation process is still alive; therefore, the estate administrator must open a Probate estate to take the decedent’s place.
- If there are probate assets: Property owned solely or jointly with other individuals will be subject to probate if the certificate of ownership did not include a clause for automatic succession or transfer of ownership in the case of death.
Types of Probate
In general, there are three different forms of probate in the State of Florida. Each has its own set of rules and procedures. They are:
1. Formal Administration: This is the default probate procedure used in settling most large estates. It begins when a petition from the decedent’s family is filed with the probate court. The Petition for Administration requests that the court appoint an estate representative in the presence or absence of a will.
Specific situations that require Formal administration are as follow:
- Where the decedent’s estate value exceeds $75,000
- Where there are multiple creditors.
- Where a Personal Representative still has to be appointed to handle the decedent’s ongoing affairs.
2. Summary administration: This is a simplified probate procedure that is applied to estates valued below $75,000. In this type of probate procedure, often, the decedent has been dead for more than two years, and all creditors have been barred (through a system called a statute of limitations which expires after two years). There’s usually no need for a personal representative because only small-sized estates go through this kind of probate procedure.
3. Ancillary administration: This type of probate procedure is initiated if the decedent lived in another state but owned property in Florida. While the main probate procedure is taking place in the decedent’s primary state of residence, the ancillary process will occur in Florida. The purpose of the ancillary probate procedure is to ensure the transfer of assets to a decedent’s heirs or beneficiaries.
Properties subject to Probate
Specific circumstances that surround a decedent’s estate predispose their assets to the probate process. These circumstances have a lot to do with the way property is owned in Florida. Here are the property ownership criteria that fall into the category of probate assets:
- Stocks, bonds, and mutual funds: These kinds of assets are liable to probate if they do not have the “Pay on Death” clause. This clause names the beneficiaries to whom the asset would be transferred upon the decedent’s death.
- Sole ownership: If a property’s ownership is solely in the decedent’s name, such property is subject to probate.
- Joint tenancy (In common): This type of property ownership describes property owned by multiple parties. If one of the owners dies, their share can become subject to probate because the co-owners own their shares independently.
The role of a Will in Probate:
A Will is a legal document that describes a person’s wish to disburse their belongings after their death. In the will, the decedent also gives a clear directive on who (executor) will manage the estate until its final distribution.
A Will doesn’t always cover all the aspects of proper estate settlement. For instance, the decedent may own assets that still need to go through probate even though there’s a Will. Also, there may be unpaid debts that need to be settled.
How is the probate process administered in the presence or absence of a will?
Probate when there’s a Will:
The presence of a valid will during probate is often referred to as testate succession. In this case, the will simplifies some parts of the probate process. Firstly, assets titled in the decedent’s name will be transferred through the directives of the will. Secondly, the will aids the named executor in conducting a thorough assessment quickly. Finally, the designated beneficiaries can easily be located and informed of their potential inheritance.
Probate when there is no Will:
The absence of a will during probate is referred to as intestate succession. In this case, the only qualified people to receive the decedent’s assets are family members. According to the Florida state laws, high priority is assigned to the spouse and then any surviving descendants, all the way to distant relatives. If there are no living relatives to collect the estate, the estate will be taken by the state.
What comprises an Estate in Florida?
Within estate planning, an estate is a legal term used to describe everything a decedent owned while they were alive. Both assets and property that are part of an estate may be subject to probate, except they are designated as Homestead. In a properly planned estate, the decedent would lay out a clear succession plan. However, this isn’t always the case.
Who may represent an estate?
Anyone named as the executor of an estate can represent it. If the decedent didn’t plan their estate, the probate courts reserve the right to appoint a suitable representative for the estate. The candidates that qualify to be selected as the personal representative follow an order of preference that is as follows:
- The surviving spouse
- The person selected by majority vote
- The most senior heir or the heir deemed most suitable by the court.
- The probate court will select any capable resident of Florida.
Non- Florida-based Representative
In some cases, a person who isn’t a resident of Florida may be considered for the role of the personal representative. However, it only happens under certain conditions: that person must be one of the decedent’s children or adopted children, adoptive parents, spouse, or sibling.
The bottom line, a close relative of the decedent, no matter the state they live in, can represent an estate in Florida during the probate process.
How long does a probate administration take?
The timeline of probate administration varies from 3 months to 2 years or more. Besides the extended deadline granted to some parties involved in probate, namely the creditors, the duration estimates account for the type of probate proceeding.
Formal administration will take longer, between 6 months to 1 year or more. Summary Probate proceeding usually takes up much less time, between 3-4 months.
Generally, simple estates go through summary administration and take up a shorter time, while formal administration involves more complex events such as creditor claims, Will contests, and tax settlements. The exact timeframe to complete the probate process will depend on many factors. A sure-fire way of knowing how long it’ll take is to get a personalized case evaluation from a Probate attorney.
Can probate be avoided?
Short answer, Yes, you can avoid Probate.
You can avoid Probate if your family and friends stipulate how the court can transfer their assets and property to beneficiaries or heirs in the case of death. However, probate becomes necessary if the decedent did not oversee how their estate can pass to living beneficiaries. Here are some ways to avoid probate :
- Joint ownership (with the right of survivorship): Jointly-owned bank accounts and investment accounts can avoid probate if they are owned as joint tenants with survivorship rights. This clause guarantees that an owner’s share of the assets will automatically be transferred to the survivor or survivors when one owner dies.
- Revocable living trust: This is an estate planning tool in the form of a written agreement that determines the terms of succession of an estate. If the decedent had a revocable trust, it would detail what happened at different phases of life and who gets what in the event of death. The trust maker would name a trustee whose role would be to manage the estate in their absence.
Disposition without administration (DWA):
If a decedent dies without an estate of minimal value, the estate may go through an informal estate settlement process called Disposition Without Administration. This process is also called a “no-probate.”
In this procedure, the person who paid off the decedent’s final expenses, such as medical or funeral bills, is repaid from the assets in the decedent’s estate. DWA is only applied under the following situations:
- If the decedent left no actual property.
- If the decedent’s estate assets do not surpass the total amount of final expenses.
- if there is personal property exempt from creditor claims or not subject to probate, such as Homestead property.
In DWA, the value of these final expenses must not exceed the combined total of $10,000.
The role of an attorney in the probate process.
Hiring an attorney is compulsory for formal and summary administration. Besides needing an expert to help guide you through the complex process and technical terms associated with Probate, Florida law requires that anyone involved in the probate process enlist an attorney’s assistance.
The involved parties, including the decedent’s family, the personal representative, or in the case of a will contest, the contestor must have legal assistance if they will get whatever is due to them from the decedent’s estate.
Filing Fees and Attorney Fees
In Florida, filing fees for documents, petitions, and claims with the court vary from county to county. The exact cost of filing will need to be verified at the actual county where estate administration is taking place. In Jacksonville, filing fees are not usually higher than $500.
The fee for the PR’s attorney is a crucial part of estate settlements, and the Florida Statutes already set out guidelines for this compensation. If the compensation guideline isn’t followed, it’ll simply be because all the parties involved in the estate administration have agreed upon a different structure for compensation which they’ll follow.
In conclusion, this article has aimed to give you a comprehensive glance at the Florida Probate process. Having this comprehensive knowledge can help you relax when the process starts.
At this point, if you have more specific questions, feel free to contact the law offices of Shawn Devries Esq. to book a personalized case evaluation.