Probate Administration

If you recently experienced the death of a loved one, dealing with the sadness is difficult enough. Adding the complicated probate process on top of your grief can be overwhelming. Probate is an uphill legal struggle, but we can take over the process and provide you with peace of mind that your inheritance is being handled with the highest skilled attorneys.

Throughout this entire process, our team will be by your side, providing legal counsel, handling paperwork, communicating with the court and interested parties, and ensuring that your loved one’s estate is administered efficiently in accordance with Florida probate laws. Our goal is to make this process as smooth and stress-free for you as possible.

Probate Administration

What is Florida Probate?

Probate, or probate administration, is the legal court process that becomes necessary when someone passes away, and assets or accounts are held in that deceased person’s name (the “decedent”). For those assets or accounts to pass to the correct people (called heirs or beneficiaries), a court process needs to be started in the county of permanent residence as listed on the decedent’s death certificate. The death certificate is usually obtained by the funeral home, but you can obtain it as well from your local Department of Health Office or the Florida Department of Health’s Bureau of Vital Statistics. Once the probate court process is initiated in the proper county, the judge appoints a trusted individual to pass on these assets to the rightful recipients. This trusted individual appointed by the court is known in Florida as a personal representative, or in other states, an executor.

Many people are surprised to find out that even if the decedent had a valid Last Will and Testament (“Will”) under Florida Law, the Will still needs to be admitted to probate court. Ultimately, the assets will be distributed to the beneficiaries listed in the Will, but that is only at the end of the long and complex probate process and with a court order. If the person passed away without a Will, probate administration is necessary to pass assets to their closest heirs, or next of kin, as determined by Florida law. If the decedent had a Revocable Trust, also known as a Living Trust, the probate process may be avoided altogether.

A probate attorney is necessary to start and oversee the entire probate process. The duration of the probate and legal fees involved will depend upon the type of probate that is required. Florida has two main types of probate: Formal Administration and Summary Administration.

Formal Administration

Formal Administration is the most common type of probate. Here, a personal representative is appointed by the court to close out the decedent’s financial matters and distribute any inheritance to the beneficiaries. Depending on the County, the timeframe of a formal administration is typically 9 months to a year and may take even longer based on the complexity of the assets and the family situation. The costs for Florida probate vary widely depending on the types of assets involved (assets such as real estate, bank accounts, businesses, life insurance policies, etc.), debts left behind that need to be settled, the number of beneficiaries entitled to receive a portion of the inheritance, and most importantly…the family dynamics (does everyone get along and will everyone cooperate in signing the necessary paperwork).

The probate administration process involves several intricate steps but rest assured that we are here to guide you every step of the way. Below is a general explanation of the probate administration process in Florida, which will give you a 10-step overview of what to expect.

The Ten Steps of a Formal Administration:

1 Starting the Probate

The process begins by filing a “Petition for Administration” with the appropriate Florida probate court to open the case. A case number and Judge will be assigned. If the deceased individual had a valid Will, we mail the original Will to the court. By law, the custodian (person having possession) of an original Will is required to deposit the Will with the court within 10 days after receiving information that such person has died. If a person dies leaving a Will, the decedent is said to have died “testate.” If a person dies without a Will, the decedent is said to have died “intestate.”

2Appointment of Personal Representative

The court will appoint a personal representative (a/k/a executor) to manage the estate. Florida has certain requirements for a personal representative to be appointed by the court. Such individual must be at least 18 years of age, a resident of Florida at the time of the decedent’s death (otherwise a bond will be required for an out-of-state personal representative) and have not been convicted of a felony. If the decedent did not have a Will, there is a hierarchy, or order of preference (that is determined by Florida law) as to who will serve as Personal Representative. Such order of preference is usually the surviving spouse, followed by a majority in interest of the beneficiaries, and then the heir nearest in degree (closest living relative).

3 Gathering of Assets, Inventory and Appraisal

The personal representative is responsible for identifying, gathering, and valuing the assets owned by the decedent at the time of their passing. This may include real estate, bank accounts, life insurance policies, investments, stocks, bonds, safety deposit boxes, personal property such as art or jewelry, and more. Surprisingly, many people discover the deceased person’s assets simply by looking through mail that arrives at their home.

4Notice to Creditors, Heirs, and the Three-Month Creditor Period

We will publish a “Notice to Creditors” in the local newspaper giving notice about the decedent’s date of death, case number, and the personal representative’s name. This publication starts the three-month creditor period in which creditors may make a claim against the estate. Likewise, the personal representative must notify potential known creditors of the decedent to allow them to make a claim against the estate. There is a specific timeframe within which creditors must file their claims with the court, otherwise they are barred from trying to collect on that claim. If any creditor claims against the estate, the personal representative must notify the heirs and beneficiaries of the estate. The most common creditors are credit card companies, unpaid electric and utility bills, outstanding medical and ambulatory services, mortgage lenders, and real estate liens, to name a few. Although we cannot guarantee the outcome, our skilled attorneys have many strategies to help you negotiate the claim down to a lower amount or on occasion, to eradicate it altogether, so that the beneficiaries receive more from the inheritance.

5 Sale of Real Estate

If the decedent owned real estate that needs to be sold during the probate process, the personal representative, with the court’s approval, can proceed with the sale. The process may or may not involve engaging a real estate agent, listing the property for sale, and following the required legal procedures. The proceeds from the sale will be deposited into an estate account (bank account opened by the personal representative) and remain there until the Judge issues an order allowing the distribution of funds to the beneficiaries.

6Payment of Debts and Taxes

It is the personal representative’s responsibility to satisfy any outstanding debts and taxes owed by the decedent upon their death. Such debts get paid from the decedent’s estate. Debts left behind often include credit card debt, medical or ambulatory bills, utility bills, or outstanding real estate tax or unpaid income tax. Whether through negotiation or the legal process, we will do our best to minimize the decedent’s outstanding debt so that the beneficiaries receive more from the inheritance.

7 Distribution of Assets

Once the three-month creditor period has elapsed, and all debts, taxes, and administrative expenses have been paid or settled, we obtain a court order which allows the remaining assets to be distributed to the beneficiaries or heirs. This distribution scheme follows the terms of the decedent’s Will or Florida intestacy laws (if they died without a Will). This part of the process is where the physical transfer of funds occurs from the decedent’s accounts to the beneficiaries’ accounts.

8 Closing out the Estate

After all administrative tasks are completed, we petition the court’s approval to close the estate. Likewise, if an estate account was opened at a bank and the funds have been distributed, the personal representative must now close the estate bank account.

9 Final Discharge of the Estate

Once the court approves our petition to discharge the estate, the personal representative is officially discharged from their duties, and the probate process concludes.

10 Ending with a Happy Client

We encourage our relationship to continue, and clients are always welcome to contact our office with any future questions or concerns. If you are happy with the level of service that you received at OC Estate and Elder Law, we kindly ask you to leave us a 5-star Google Review to let others know about the service that we provide.

Summary Administration

Summary administration is a simplified probate process suitable for smaller estates. This process is generally quicker than full administration and can be completed within several months. According to the Florida Statutes, summary administration is available if the person has been deceased for over two years or if the assets of the decedent are less than $75,000. It can also be used when the only asset is a Florida homestead real estate property (primary residence of the decedent).

The main difference with summary administration is that a personal representative is not appointed by the court. Often, a life insurance company or financial institution housing a retirement plan will require a personal representative even when the assets are below $75,000. A personal representative is also required if there is real estate that needs to be sold during the probate process. Therefore, even if the assets are below $75,000 in value, a full probate administration may still be required in certain instances. Below is a general explanation of the summary administration process in Florida, which will give you a 5-step overview of what to expect.

The Five Steps of a Summary Administration

1 Prepare the Summary Administration Pleadings

We will prepare the “Petition for Summary Administration,” which includes basic information about the decedent, their assets, and beneficiaries. There are several other documents and affidavits that must accompany this Petition. We will prepare everything so that all you have to do is read, review, and sign.

2Prepare a Petition for Determination of Homestead

In certain cases, it may be necessary to prepare a Petition to Determine the Homestead Status of the decedent’s primary home. Homestead status affects the distribution of assets in probate and can provide certain creditor protections and exemptions under Florida law. We will assess your situation to determine if preparing such a petition is necessary. If this Petition is required, we will work with you to gather all relevant documentation related to the property. This may include proof of residency, property ownership records, and any relevant affidavits or supporting materials.

3 File the Initial Pleadings

Once the Petitions are prepared, we will file them with the county probate court. The court will review the Petition and supporting documents to ensure they meet the requirements for Summary Administration. A case number and Judge will be assigned. If the deceased had a valid Will, we mail the original Will to the court.

4Obtain the Order of Summary Administration and Determination of Homestead

After the court has reviewed the petition and supporting documents, and any necessary notices have been published and expired, the court will issue an order of summary administration, as well as the determination of homestead. This order grants authority for the distribution of assets from the decedent’s name to the beneficiaries.

5 Distribution of Assets

With the Order of Summary Administration in hand, you can proceed with the distribution of assets to the beneficiaries or heirs as outlined in the decedent’s Will or Florida intestacy laws (if they did not have a Will). It is important to note that the distribution must comply with the terms of the order and any statutory requirements.

Now that you understand the two types of probate, you may be wondering if there is a way for your family to avoid probate all together? The good news is that YES, there are several ways to avoid ending up in a Florida probate court. This is best accomplished through proper estate planning, often involving the use of a Revocable Trust.

FREQUENTLY ASKED PROBATE QUESTIONS

Are any of these questions troubling you as you consider how to protect your family’s future?

[1] What Do I Need to Start a Probate?

Surprisingly, not much. The first item on your roster should be to enlist the help of an experienced probate attorney. After that, here are the key items you typically need to start a formal probate administration:

Death Certificate: An official death certificate for the deceased individual that does not list the cause of death (as this will be filed with the probate court). The death certificate is usually obtained by the funeral home, but you can obtain it as well from your local Department of Health Office or the Florida Department of Health’s Bureau of Vital Statistics.
Original Will: If the decedent had a valid original Last Will and Testament (“Will”), that is properly signed, witnessed, and notarized, the original copy must be given to the attorney to submit to the court. By law, the custodian (person having possession) of an original Will is required to deposit the Will with the court within 10 days after receiving information that such person has died. If a person dies leaving a Will, the decedent is said to have died “testate.” If a person dies without a Will, the decedent is said to have died “intestate.”
List of Assets: An inventory of the deceased person’s assets including real estate, bank accounts, investments, life insurance policies, stocks, bonds, debts, etc. Sometimes the easiest way to locate such financial records is by going through the decedent’s mail or checking their email account. Many times, only knowledge of a few assets are necessary to start the probate case, and the rest of the assets are discovered as the case progresses.

After we obtain these documents from you, we will begin working on your matter immediately. We understand that dealing with probate matters can be both emotionally challenging and legally complex. The probate administration process involves several intricate steps but rest assured that we are here to guide you every step of the way.

[2] What Happens if a Person Dies Without a Will?

If a person dies without a valid Will (or other estate planning documents such as a Trust) in Florida, the state’s intestate succession laws determine how assets are going to be distributed among the closest surviving family members, called heirs. If the decedent had no children, the entire estate passes to the surviving spouse. Likewise, if the decedent had children only with the surviving spouse, the entire estate goes to the surviving spouse. If the decedent had children with anyone other than the surviving spouse, the estate gets split between the surviving spouse and the children. If there is no surviving spouse nor children, the estate passes to the decedent’s father and mother equally, or to the survivor of them. If both parents are deceased, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

To avoid having to construct this complicated family tree, we can help provide clarity on how the laws apply to your specific family situation. This is especially critical when there are multiple marriages, half-relatives, adopted children, or stepchildren. We will make sure that you determine who receives your assets, rather than the state of Florida making the decisions for you.

[3] What Happens if Someone Opposes the Terms of the Will?

Challenging a Will, referred to as a “Will contest,” is a frequent occurrence in probate proceedings and can involve substantial litigation costs. To contest a Will, the person who does not agree with the terms of the Will must have legal “standing” to even bring this matter before a Judge. Having legal standing means that a person has an interest under the Will, either as a beneficiary, a family member left out of the Will, or someone who objects to the personal representative (a/k/a executor) who wants to be appointed to manage the estate. Will contests often arise when children are inheriting unequal shares, when distribution plans shift from an earlier Will to a subsequent Will, or when there is reason to believe the person who created the Will (Testator or Testatrix) was acting under duress, undue influence from another person, or not of sound mind when they created and signed the Will.

[4] What Type of Property Does Not Need to Go Through Probate?

Probate primarily facilitates the transfer of title from the deceased person’s (the “decedent”) name to the names of the beneficiaries. However, specific assets known as “non-probate assets” bypass the probate process. These include, but are not limited to:

Real estate property held as “joint tenants with right of survivorship,” which automatically transfers to the surviving co-owners by law (the individuals listed on title).
Retirement accounts such as IRAs and 401(k)s with designated beneficiaries.
Bank accounts with “pay on death” (POD) or “in trust for” beneficiary designations.
Property owned by a Revocable Trust or an Irrevocable Trust in which legal title transfers to successor trustees without probate proceedings.
Businesses that are governed by a valid Company Agreement or Corporate Bylaws. These are legal documents that contain internal rules that govern how a business is run and who takes over the decedent’s shares or interest in that business.

[5] What is the Three-Month Creditor Period & Why Does it Sound Scary?

The Florida Creditor Period, also known as the “Time When Creditors Come Knocking,” designates a specific three-month period during which creditors have the right to assert their claims against the estate of the deceased individual. Such a claim must be officially filed with the probate court in which the case is pending.

This period is a crucial aspect of the probate process designed to ensure that outstanding debts are appropriately addressed. First, a “Notice to Creditors” is published in a local newspaper in the county where the probate procedure has been filed. This publication occurs twice and starts the clock running for three months in which creditors can file a formal claim against the estate with the probate court. Such creditors typically manifest themselves as credit card companies, utility companies, ambulatory services, unpaid medical bills, and even Medicaid.

While dealing with creditors may sound unpleasant, ultimately, the Florida creditor period is a procedural element required by the court. Whether through negotiation or the legal process, we will do our best to minimize the decedent’s outstanding debt so that the beneficiaries receive more of their inheritance.

[6] What if I Need to Sell Real Estate During the Creditor Period?

Often families find themselves unable to maintain the residence of the decedent and want to sell the home or other real estate property as quickly as possible. This often occurs because the family does not wish to continue to pay the property taxes, homeowners’ insurance, mortgage payments, and maintenance and condominium association fees that come with inheriting a property.

If the family decides that the real estate needs to be sold quickly, a formal probate administration is required. During the probate process, a personal representative will be appointed. That personal representative, with the court’s approval, can proceed with the sale. The process may or may not involve engaging a real estate agent, listing the property for sale, and following the required legal procedures. The proceeds from the sale will be deposited into an estate account (bank account opened by the personal representative to hold the decedent’s assets until they are ready to be distributed). With a court order, the money from the sale of such property will then be distributed from the estate bank account to the beneficiaries.

[7] How Does Homestead Property Transfer During Probate?

Florida homestead laws are different from the other 49 states. While this may be confusing to some probate attorneys outside Florida (and many within Florida), there is a unique procedure for anyone inheriting someone’s home in Florida. Even though pursuant to Florida Statute 733.607, protected Florida homestead property is not considered a probate asset, it still requires the family to start a probate procedure.

First, let us define what homestead is. The technical definition reads “Homestead is real property, of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it.” Art. X, §4(a), Fla. Const. In simple terms, it is the decedent’s primary residence prior to death and must be owned in the decedent’s name (as opposed to a business). The decedent must be a Florida resident and must prove this by a valid state driver’s license or State ID, voter registration card, vehicle registration, etc. Note that a person must be a legal United States Resident or citizen to qualify for this homestead status.

When a Florida resident passes away, their primary residence (called their homestead) is exempt from creditor claims and this protection passes to the decedent’s heirs at law (a/k/a beneficiaries). This means the decedent’s creditors cannot force the family to sell the homestead or collect any outstanding debts against the homestead. However, in order for this homestead protection to apply, the court must enter a Determination of Homestead Status by means of a court order ensuring that all homestead criteria have been met. Note that the creditor-protected homestead status only passes to heirs of the decedent such as spouses and children (and not to friends or distant relatives).

[8] How Much Does Probate Cost?

The costs of a probate case vary immensely. Summary Administrations are generally less expensive and shorter in duration. The cost of a full probate administration depends on several important factors such as:

Overall value of the estate (adding up the total value of all the decedent’s assets)
Types of assets involved in the probate proceeding (real estate, bank accounts, life insurance policies, brokerage accounts, businesses, and tangible assets). Remember that not ALL assets need to pass through the probate process in order to be distributed.
Number of beneficiaries entitled to the inheritance (every beneficiary needs to be provided with a copy of every legal document during the process and sign off on these documents)
The existence of a Will or lack of a Will
Debts of the deceased individual that turn into creditor claims must be settled or negotiated, and;
Most importantly, the family dynamics during the process (does everyone get along and can the beneficiaries make decisions together or does the attorney need to negotiate with each family member separately).

Note that both types of probates have standard costs and fees such as personal representative fees, attorneys’ fees, accounting fees, court fees and filing costs, appraisal costs, and mailing expenses.

[9] Can I Get Paid for Serving as the Personal Representative of the Estate?

YES, you can! Mainly because serving as the personal representative can be a time-consuming process that requires reading and understanding legal petitions, opening an estate account at a bank, frequent communication with attorneys, financial institutions, creditors, and beneficiaries. Such “work” performed by a personal representative can be compensated by the statutory fee in Florida, which is based on the value of the estate as follows: (a) At the rate of 3 percent for the first $1 million. (b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.

Personal representatives may also be reimbursed for all legitimate out-of-pocket expenses incurred during the probate process such as payments made to maintain the decedent’s residence, funeral costs, travel expenses, etc. Note that this reimbursement only occurs with proper documentation and receipts to prove the validity of such expenses.

[10] How Do I Pay My Bills While the Estate is Being Settled?

Under Florida probate law, if the decedent was providing financial support to their spouse and/or children, then the surviving spouse and the decedent’s children are entitled to an immediate reasonable allowance for their maintenance while the probate case is ongoing. This is called “family allowance” and is intended to ensure that the surviving spouse and dependent family members can maintain their standard of living while the estate is being settled. It provides them with a source of income to cover necessary expenses such as housing, utilities, food, and other essentials, meant to ease the strain that arises from the loss of the deceased person’s income. Such financial compensation is only allowed with a court order and shall not exceed a total of $18,000. Typically, the family allowance is granted early in the probate process, often soon after the death of the decedent.