Probate in Florida (an Essential Guide)

Probate is a lengthy, public and costly court-supervised process for identifying and gathering the assets of a deceased person (decedent).
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If you are curious about what a Florida probate is, you might have experienced the loss of a loved one. This is a highly emotional and stressful time for you, and we are here to guide you.

Once the initial shock subsides, there are many tasks to be done.  Unfortunately, a number of them are time-sensitive and cannot be delayed. Most of these tasks fall to the surviving spouse unless a trustworthy and well-organized sibling or adult child can help.

Here is a list of 12 Things that You Need to Do When a Loved One Dies:

  • Making funeral arrangements if they have not been done previously.
  • Contacting family members and close friends.
  • Securing the home or apartment.
  • If there is a pet, find someone to care for them, even if it’s a short-term arrangement.
  • Locating the will and estate planning documents.
  • Contacting Social Security, Medicare, Medicaid, and the Veterans Administration.
  • Contact the U.S. Post Office to have mail forwarded.
  • Obtain ten (10) original death certificates (at least 2 of the death certificates should be without the cause of death).
  • If the decedent was working, notify their employer.
  • Unless you had joint accounts or POD accounts, notify financial institutions.
  • Notify the CPA, financial advisor, and any attorneys.
  • Notify credit card companies and freeze the cards.

These are the most immediate tasks. In the weeks and months to come, there will be many more.

You’ll also need to notify the life insurance company, find out how policy proceeds will be distributed, and if there are any outstanding premiums that can be returned. The Department of Motor Vehicles needs to be notified to cancel the driver’s license, and you may want to notify the local Board of Elections.

In the early weeks, you will need to hire an attorney to assist with the administration and determine whether probate is necessary.

What is a Florida Probate?

Probate is a lengthy, public and costly court-supervised process for identifying and gathering the assets of a deceased person (decedent). Probate can be complex and time-consuming depending on the nature of the assets, the amount or extent of debts, and the relationships among beneficiaries.

In Florida probate occurs when someone dies with a Will (testate). When a person uses a Will, they are planning on their estate passing through probate. This process begins with the validation of the Will by the court.

The Will must be filed with the probate court within 10 days after death. Bear in mind that a beneficiary or heir will not have access to the probate assets without a probate administration.

Essentially, the court “admits” the Will to probate after verifying that the Will was executed validly and that there are no objections to the Will being admitted. The court then appoints the personal representative nominated in the Will. There are court fees, and court appearances might be required.

If there is no Will (intestate), then the person’s estate is administered according to the Florida Statutes. The statutes dictate who can be appointed as the Personal Representative and how the deceased person’s estate is distributed.

How Long Does Probate take?

The probate process takes time to make certain that everything is done according to the law. As a result, it can take from a few months up to over a year. There’s a long list of variables that can contribute to the duration. A few of the common factors are discussed below.

  • Estate Size. An estate’s size contributes significantly to the time in probate. Most states use the total value of the estate to determine its size. This depends on state laws and the type of assets included in the estate. Many states now have a small estate probate process, and some waive it all together for low-value properties.

The state may have a small estate limit of a certain dollar amount. The personal representative or beneficiaries can complete a Small Estate Claim Form or an Affidavit for Transfer of Personal Property to avoid probate for estates below that value.

  • Multiple beneficiaries. If an estate has a number of heirs, it may complicate the process. Multiple beneficiaries can slow down the probate proceedings because disputes can drag out an otherwise smooth legal process. Disagreements among family members or other heirs can result in delays or even a total halt.
  • No Will. If a person dies without a will, it means that there’s no guidance from the decedent. As a result, the court and the personal representative have to work through the estate and distribution from scratch.
  • Debts. Taxes and debts are major factors in the time needed to close an estate. Creditors must be paid before the beneficiaries can receive anything. When a person dies, his or her creditors must receive formal notice. They have a deadline to make a claim for money the deceased person owed. The longer the claims period, the longer the delay in the probate process.
  • Taxes. Taxes on an estate also can take a while to process.  Depending on the size of the estate, the estate must receive a closing letter from the IRS to close out the probate process. This can take up to six months. Also, the decedent’s personal taxes must be filed and liabilities paid to the IRS.

Duties of the Personal Representative

After the court admits the Will and appoints a Personal Representative “Letters of Administration” are signed by the Court. This document empowers the Personal Representative to manage the estate.

Some of the duties of the Personal Representative include creating an inventory of assets and liabilities, filing the decedent’s last tax return, obtaining an EIN for the estate, filing the estate tax return, paying creditors, securing the home, and notifying heirs of the decedent’s death and ultimately distributing assets.

Estate Administration when there is no probate

Probate is often confused with estate administration. Even if most or all assets have been taken out of the estate to avoid probate, there are still some administrative tasks, including filing the decedent’s last tax returns for state and federal taxes and, if necessary, filing an estate tax return.

Why Do You Need To Begin Probate?

Probate is usually necessary when property is only titled in the name of the decedent. It could include real property, bank accounts, or cars. There are some assets that do not go through probate and pass directly to beneficiaries. A partial list includes:

  • Life insurance policies with designated beneficiaries
  • Pension plan distribution
  • IRA or 401(k) retirement accounts with designated beneficiaries
  • Assets owned by a trust
  • Securities owned as Transfer on Death (TOD)
  • Wages, salary, or commissions owed to the decedent (up to the set limits)
  • Vehicles intended for the immediate family (this depends on state law)
  • Household goods and other items intended for the immediate family (also depending upon state law).

Hiring a Probate Attorney

Now that you have taken the important initial steps it is time to hire a probate attorney to determine the type of administration that will be necessary. To begin a probate proceeding, the Personal Representative must be prepared to pay the initial fee and costs to get the case started.

The person who hires the attorney, the proposed Personal Representative, pays the initial fee and costs and can be reimbursed later from the probate assets. A probate administration can run in the multiple tens of thousands of dollars. Bear in mind, that the value or size of the estate does not always determine the costs to probate.

Types of probate administration:

There are four (4) main types of probate administration:

  1. Disposition Of Personal Property Without Administration

The disposition of personal property without administration is a type of administration (that does not involve opening probate). This type of administration occurs when the decedent dies leaving only:

  • personal property exempt under the provisions of section 732.402 of Florida Statutes
  • personal property exempt from the claims of creditors under the Florida Constitution, and
  • nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

Under Section 735.301, Florida Statutes, an interested person may file the required forms for a disposition of personal property without administration. In many jurisdiction, the clerk of court is authorized to assist an applicant with the application process.

Upon informal application for a disposition of personal property without administration, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

  2. Summary Administration

Summary administration is an abbreviated procedure available administration for estates under $75,000 or when the decedent has been dead for more than two years. An interested person or persons petitions the Court and there is no need for the appointment of a personal representative.

Once the Court approves the petition, the Court enters an Order of Summary Administration of the decedent’s assets to those entitled to it under the Will or under law. A summary administration proceeding can be completed in about 90-120 days. In estates where the decedent has been dead for less than 2 years special attention must be given to creditors.

3. Formal Administration

Formal administration is the most lengthy and costly type of administration. If someone dies with assets in excess of $75,000.00 or they have been dead for less than 2 years, a formal administration will likely be required.  One important distinction about a Formal Administration is that a personal representative must be appointed. As such, a Formal Administration requires the preparation, filing, and service of many legal documents before the Court will order the final distribution of assets and is therefore more complex than a Summary Administration. Also, a Formal Administration usually lasts at least 9 months.

4. Ancillary Administration.

An Ancillary Administration is necessary when someone dies as a resident of another state but owns real property in Florida. When a person dies owning real property in another state, the title to that property may only be transferred through the court of the state where the property is located.

Can Probate be Avoided?

Yes, probate can be avoided. During the process of probate, the will becomes part of the public record. Anyone, from disgruntled relatives to creditors and thieves, may view the will’s contents and inventory.

There are a number of ways to avoid probate through proper estate planning, including jointly owned property, beneficiary designations, and the use of trusts.

When a property is held as joint tenants with rights of survivorship, or as “tenant by the entirety” with a spouse the property passes automatically to the survivor without probate. It should be noted that this supersedes the terms of a will or a trust.

Another type of joint ownership is “tenancy in common,” However, property held as tenants in common does not avoid probate. The distribution of property titled this way is governed by the will. If there is no will, the state’s estate laws will govern who receives the property on the death of one of the owners.

Beware: property owned jointly is subject to any litigation or creditor issues of a joint owner.

Beneficiary designations are a seamless way to transfer property. This can take the form of a POD (payable on death) or TOD (transfer on death) account. Pensions, insurance policies, and certain types of retirement accounts provide owners with the opportunity to name a beneficiary. Upon the death of the owner, the assets pass directly to the beneficiary. The asset is not subject to probate and the designations supersede the terms of a will or trust.

Review beneficiary designations every time you review your estate plan. If you opened a 401(k) account at your first job and have not reviewed the beneficiary designation in many years, you may be unwittingly giving someone you have not seen for years a nice surprise upon your passing.

A trust is a legal entity owning any property transferred into it. Creating a fully-funded revocable living trust with a trustee of your own choosing to manage the trust assets privately and confidentially for your beneficiaries can avoid a probate. An experienced estate planning attorney can help you select the right estate plan for your unique circumstances now and keep it up to date since changes inevitably occur.

Reasons to Avoid a Florida Probate:

There are four main reasons to avoid probate:

  1. Privacy. Because Probate is a court-supervised legal process the legal filings such as the initial petition that names the decedent, the beneficiaries, and the approximate value of the estate are accessible to anyone, online or in person.
  2. Control. Once the probate case is open and the court appoints a Personal Representative many actions of the Personal Representative will require the court’s permission. This can delay the probate and handicap the Personal Representative.
  3. Cost. The legal fees to probate an estate can be enormous and diminish the estate inventory. In fact, the legal fees of the attorney is paid before distribution is made to the beneficiaries.
  4. Time. A formal probate administration can take anywhere from 9 months to a year to complete.  If the estate is complex with many creditors, real estate, or illiquid assets, it can easily take longer than a year.

We can gladly assist you with your probate matter. Click here to Book a Free Consultation with a Broward County probate attorney.

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