The Ultimate guide for Probate in Florida
The probate process has been around for a long time and Florida laws have changed over the years. If you are the executor or beneficiary of an estate and you have an idea of the probate process but still need more information, this ultimate guide to probate in Florida will educate you on what’s involved in the probate process in Florida as well as what to expect.
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’re involved in probate in Florida.
This guide to probate in Florida covers:
- What is probate?
- When is probate necessary?
- Types of Probate
- Properties subject to Probate
- The role of a will in Probate
- Probate when there’s a will
- Probate when there is no will
- What comprises an Estate in Florida?
- Who may represent an estate?
- Non-Florida-based representative
- How long does a probate administration take?
- Can probate be avoided?
Probate is the legal process that ensures the transfer of a decedent’s estates and property to his beneficiaries (if there is will) or to his heirs (where there is no will). Within the probate process, anyone who has a claim on an estate is given ample chance to verify their claims. During probate, outstanding taxes are paid, creditors and their debts are also settled.
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. Whatever has been acquired during the lifetime of a decedent in the form of property or debt has to go through a transition and settlement.
Death could occur at any time, and for this reason many individuals pay attention to estate planning long before they die. In cases where an estate is carefully planned, assets and property belonging to the decedent may not be subject to probate. In a case where estate planning wasn’t done before death, some or all of the decedent’s property will most likely go through probate.
There are situations where probate is unavoidable, these include:
- Wrongful death claim: If a decedent’s death is caused through the fault of another, the personal representative of the decedent can sue whoever is responsible for damages. Once the legal action filed against the wrongdoer has been determined, any monetary compensations awarded will be disbursed among beneficiaries. This disbursement must be approved by the probate court 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, a probate estate has to be opened to take the place of the decedent in the litigation.
- 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 at death.
In general, there are 3 different forms of probate in the State of Florida. Each has its own set of rules and procedures. They are:
- 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 is followed by the appointment of a personal representative who is either named in the will or appointed by the probate court.
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 on-going affairs.
- Summary administration: This is a simplified probate procedure that is applied to estates valued below $75,000. In this type of probate procedure, oftentimes, 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 it’s mostly small-sized estates that go through this kind of probate procedure.
- 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 procedure will be taking place in Florida. The purpose of the ancillary probate procedure is to ensure the transfer of assets to a decedent’s heirs or beneficiaries.
There are specific circumstances surrounding a decedent’s property that predisposes 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 whom the asset would be transferred to in the case of a death.
- Sole ownership: If the ownership of a property is solely in the name of the decedent, 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 independent of each other.
A Will is a legal document that describes a person’s wish as to how their belongings will be disbursed 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?
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 under the name of the decedent will be transferred through the directives of the will. Secondly, the will aids the named executor in conducting a thorough assessment in a very short time and finally, the named beneficiaries can easily be located and informed of their potential inheritance.
The absence of a will during probate is referred to as intestate succession. In this case, the only people who are qualified 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.
Within the context of 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, a decedent would outline his or her assets and property and succession will be clearly spelt out. However, this isn’t always the case.
When an estate is planned, the decedent would already have named an individual or entity that would serve as the personal representative of their estate in the event of death. The role of this representative would be to ensure the proper distribution of the estate to the beneficiaries and heirs.
If the estate wasn’t planned, 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.
- Any capable resident of Florida selected by the probate court.
In some cases, a person that isn’t a resident of Florida may be considered for the role of personal representative. This only happens under certain conditions: that person must be one of the decedent’s children or adopted children, adoptive parents, spouse or sibling.
Bottomline, a close relative of the decedent no matter their state of residence can represent an estate in Florida during the probate process.
The timeline of probate administration varies from 3 months to 2 years or more. Besides the long deadline granted to some parties involved in probate, namely the creditors, the duration estimates account for the type of probate proceeding taking place.
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. Evidently, the exact timeframe to complete the probate process will depend on a number of factors. A sure-fire way of knowing how long it’ll take is to get a personalized case evaluation from a Probate attorney.
Short answer, Yes, Probate can be avoided.
If the estate of a living person clearly details the means by which ownership of assets and property can be transferred to beneficiaries or heirs, then probate can be avoided. However, probate becomes necessary when the decedent did not make provision for how their estate can pass to living beneficiaries. There are some mechanisms that can be put in place to avoid probate :
- Joint ownership (with right of survivorship): Jointly-owned bank accounts and investment accounts can avoid probate if they are owned as joint tenants with rights of survivorship. This clause guarantees that when one owner dies, their share of the assets will automatically be transferred to the survivor or survivors.
- Revocable living trust: This is an estate planning tool in the form of a written agreement that can be used to determine 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 trustmaker 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 the medical bills or funeral bill is repaid from the assets in the decedent’s estate. DWA is only applied under the following situations.
- if no real property was left by the decedent
- if the decedent’s estate assets do not surpass the total amount of final expenses
- if there is personal property that is 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 should enlist the assistance of an attorney.
The involved parties, which include 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, claims with the court vary from county to county. The exact cost of filing will need to be verified at the exact county where estate administration is taking place. In Jacksonville, filing fees are not usually higher than $500.
The fees for the PR’s attorney is a crucial part of estate settlements and the Florida Statutes already set out guidelines for this compensation. When these fee structure guidelines are not followed, it’ll simply be because all the parties involved in the estate administration have agreed upon a different structure for compensations which they’ll follow.
In conclusion, the aim of this article has been 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 DeVries Law Firm, P.A. to book a personalized case evaluation.
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