The holiday season, traditionally a time of joy and togetherness, can be exceptionally challenging when you have lost a loved one. Seeing families walking around the mall can sting, as well as receiving holiday cards from happy families who are not dealing with the weight of the world on their shoulders. 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 is 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.
Not surprisingly, our law firm gets very busy every January. No one wants to deal with lawyers or finances during the holidays. Once the new year sets in, people tend to be more ready to deal with the necessary evil of starting a probate administration to pass on the assets of their loved ones. Throughout the entire probate 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 as possible for you.
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 or beneficiaries, a court process needs to be started in the county listed on the deceased’s person’s permanent residence as listed on their Death Certificate. The judge then appoints a trusted individual to pass on these assets to the rightful recipients. This trusted individual 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 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 beneficiaries, or next of kin, as determined by Florida law. If the decedent had a living trust, the probate process may be avoided altogether.
A probate attorney is necessary to start and oversee the 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. The timeframe of a formal administration is typically 9 months to a year and depending on the complexity of the assets and the family situation, may take a whole lot longer. The costs for Florida probate can vary widely depending on the types of assets involved (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:
- Opening 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.
- Appointment 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.
- 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, personal property, and more. Surprisingly, many people discover the deceased person’s assets simply by looking through mail that arrives at their home.
- Notice to Creditors and Heirs: 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 identity. 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, otherwise they are barred from trying to collect on that claim. The personal representative must also notify heirs and beneficiaries of the estate.
- 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).
- Payment of Debts and Taxes: It is the personal representative’s responsibility to satisfy any outstanding debts and taxes owed by the decedent’s estate. Such debts left behind often include credit card debt, medical or ambulatory bills, and utility bills. 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.
- 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 did not have a Will). This part of the process is where the physical transfer of funds occurs from the decedent’s accounts to the beneficiaries’ accounts.
- 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 estate bank account must now be closed by the personal representative.
- 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.
- 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 in several months. According to the Florida Statutes, summary administration can be done if the person has been deceased for over two years or if the assets 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. Below is a general explanation of the summary administration process in Florida, which will give you a 5-step overview of what to expect:
- 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.
- Prepare 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 real estate. 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.
- 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.
- Obtain 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.
- 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 it 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.
Remember, navigating grief during the holidays is a personal journey, and there is no one-size-fits-all approach. Be patient with yourself and allow the healing process to unfold at its own pace. When you are ready, call our trusted probate attorneys at OC Estate and Elder Law at (954) 251-0332 or info@ocestatelawyers.com to help guide you through the probate process.
