Florida Probate Law
What Is Probate?
Probate is the legal process in which the decedent's assets are identified, taxes are paid, and the remaining assets are ultimately distributed to the creditors and the beneficiaries. It in effect legally transfers the decedents's assets to the rightful heirs. In Florida there are generally two types of administration: Formal Administration and Summary Administration.
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1. What is an asset?
Generally, estate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. Examples of things which generally are part of the probate estate include a bank account in the decedent's sole name, a life insurance policy made payable to the decedent's estate, or real estate titled in the sole name of the decedent. Examples of things which generally are not part of the probate estate include such things as a bank account held in trust for someone else or a joint account with rights of survivorship, a life insurance policy or retirement account/annuity with a named beneficiary, or real estate held with someone else as joint tenants with rights of survivorship. Additionally, property owned as husband and wife as tenants by the entirety is not an asset for probate purposes. Upon death of the first spouse, the property so held automatically transfers to the surviving spouse.
As you can see, there can be many examples of property that are and are not considered assets for probate purposes. It is important you hire a probate attorney to properly identify what assets are and are not part of the probate estate.
2. Why is probate necessary?
Probate ensures that all of the decedent's creditors are properly placed on notice and given an opportunity to file a claim and get paid, and serves to effectuate the transfer of assets from the decedent to the proper beneficiary. It also helps to insure the decedent's wishes in a valid will are properly executed and carried out, and finally provides a mechanism to transfer assets if the decedent dies without a will.
3. What is a will?
A will is nothing more than a written instrument, signed and properly witnessed, and meets the other requirements of Florida law. It also will generally appoint a personal representative to administer the estate and insure the appropriate probate proceeding is accomplished. Wills can also be as complex as you want them to be, including establishing a trust and designating a trustee, and containing multiple contingencies.
If the will is valid under Florida law, the decedent died "testate" and it will generally control the distribution of the probate assets. If, however, a will fails to comply with the provisions of Florida law, the decedent is said to have died "intestate" and Florida law will dictate the manner in which the estate is distributed, even if it was against decedent's intent and/or wishes.
4. What happens if there is no will?
As previously discussed the decedent would have died intestate or without a will. Florida law then dictates how the assets are distributed. The assets are generally distributed to the surviving spouse in whole, if there are no lineal descendants. If there is a surviving spouse and lineal descendants, then the surviving spouse receives the first $60,000 of the probate estate, plus one-half of the remainder of the probate estate. The lineal descendants then share the remaining half in equal shares, provided all of the lineal descendants are lineal descendants of the surviving spouse and the decedent. If one or more of the lineal descendants are not the lineal descendants of the surviving spouse and the decedent, then the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half. If there is no surviving spouse, but lineal descendants, then the lineal descendants share the estate, which is divided into shares at the immediate children level, with a deceased child's share going to the descendants of that deceased child. If there are no surviving spouse and no surviving lineal descendants, then the estate assets go to the decedent's surviving parents, if any. If there is no surviving spouse, then it goes to decedent's siblings and descendants of any deceased sibling. And as you may have guess, if there are no such survivors, Florida law provides for further disbursement of the same.
Of course, as with any law, there are exceptions. Homestead property, exempt personal property and statutory allowance to the surviving spouse all may modify the above to some extent. For example if the decedent's home is titled in the decedent's name alone, then the surviving spouse receives a life estate in the homestead, with any lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. As you can see, the distribution of probate assets can be quite complicated which is why it is wise to seek a probate attorney to assist you in probating a will. In fact, as alluded to earlier, Florida law actually requires an attorney to file a formal probate due to the complexities involved.
5. Where is a probate filed and how is it administered?
Probate papers are usually filed in the Circuit Court for the county in which the decedent lived. A filing fee needs to be paid and the clerk will open the file. It is then assigned to a Circuit Court Judge who presides over the proceedings. The judge will appoint a personal representative and issue the "letters of administration." This "letter" grants the personal representative the power to act. Once the appropriate documents have been filed, and notices sent, and all the other requirements so prescribed by Florida law have taken place, the Judge will then issue an "Order" directing the administration of the assets.
6. What is a personal representative and what does he or she do?
The personal representative is the designated person(s) and/or entity(ies) in charge of administrating the estate and executing the Judge's orders. Essentially, the personal representative is in charge of identifying, gathering, and valuing the probate assets, as well as safeguarding them until the appropriate orders have been signed disbursing the assets. They are also in charge of publishing proper notices, serving a "notice of administration" on certain people regarding the probate, searching for creditors, objecting to creditor claims, and other duties as prescribed by Florida law.
7. Why does the personal representative need an attorney?
Pursuant to Florida law, an attorney must represent almost all personal representatives. As you can see from reading this very brief and cursory information provided, probate can be a long and complex process. If it is not done correctly, then the assets could ultimately be subject to attack by creditors. As a probate attorney, my job is to advise the personal representative on the rights and duties under the law and represent them in the probate proceedings.
The personal representative is free to choose the firm and/or probate lawyer he/she wants. A decedent's demand in a will that a certain law firm or probate attorney be used is not binding on the personal representative. Be sure to find a probate lawyer with the proper training and background to handle your probate in Florida.
8. Can a decedent disinherit certain beneficiaries?
In Florida, a decedent may be able to disinherit certain potential beneficiaries, other than the surviving spouse and in certain circumstances the lineal descendants.
9. How long will a probate take?
If the estate is not required to file a federal estate tax return, the final accounting and papers to close the probate administration are due twelve (12) months from the issuance of the letters of administration. Of course, this time frame can be extended, after giving proper notice.
If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. Often this time period is extended as the IRS usually cannot review and accept the same within the prescribed time period.
10. Do you have to open a formal administration?
As discussed earlier, there are several alternate procedures. Summary administration is usually available if the value of the estate assets subject to probate in Florida, not including property which is exempt from the claims of creditors (ie, homestead property for example) is not more than $75,000, or if the decedent died more than two years prior to the filing of the administration.
The downside to summary administration is that beneficiaries who receive the estate assets remain liable for claims against the decedent for two years after the date of death. This period may be shortened through the appropriate publication.
There is also the possibility of "Disposition without Administration." This may be available if the estate assets consist only of exempt property and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.
There are also other procedures to deal with what is termed a foreign will, a will that is not probated in the State of Florida. This usually occurs when the decedent owned real property in Florida, and that property needs to be transferred to the appropriate beneficiary.
Summary
Of course, this page is only meant to be an introduction into the complex world of Probate and the proceedings required under the State of Florida and an introduction on how to probate a will in Florida. As you can see, Probate can be quite complex. If you have any specific questions regarding the application of probate law to your case, or need a probate attorney please contact my office for a free consultation in the Orlando area at 407-657-2525, or toll free at 1-888-581-2525, or send an e-mail regarding your case.
The hiring of a probate attorney is an important decision and should not be based solely upon advertisements. Before you decide on a probate lawyer, call or email us asking for free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advise nor the formation of an attorney client relationship.