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:
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:
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:
Specific situations that require Formal administration are as follow:
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:
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.
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:
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 :
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.
In DWA, the value of these final expenses must not exceed the combined total of $10,000.
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.
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.