Probate is a process supervised by the Florida court system that involves gathering the assets of a decedent, paying their debts, and distributing their assets to their descendants or beneficiaries. There are two common types of probate administration in Florida, summary administration and formal administration and both require the knowledge of a skilled attorney.
Serving as an executor (also referred to as a personal representative) is unique in the sense that it is one of the only ways that someone without any legal background whatsoever may nevertheless suddenly be required to demonstrate voluminous amounts of legal competence.
When you find yourself called upon to serve as an executor, your choice of legal counsel is an important one, as the right attorney can help guide you through this difficult time and the wrong attorney will often only compound your stress and confusion.
If you find yourself facing the daunting task of administering the estate of another, then it is time to find out what our clients already understand. Probate is easier with Ourednik Law Offices on your side because we do the work so that you don’t have to be left wondering what will happen next.
Contact Ourednik Law Offices to see how we can assist you in probate administration today.
When faced with the possibility of probate, there are a number of questions that commonly arise.
Is Probate Necessary?
Whether probate is necessary depends on the circumstances. Probate is generally necessary where the decedent owned property in their name alone. If the decedent left a valid will, the will must be admitted to probate court in order to be effective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are the decedent’s heirs under Florida law. A common example of this reason for probate is where the decedent dies owning a piece of real property. Sometimes, the individuals who are to receive the property are under the impression that they simply become the owners of the property upon the decedent’s passing. They later go to sell or otherwise transfer the property, only to learn that the decedent’s name is still on the property records and they do not have clear title. Probate administration will be necessary to establish ownership of the property in the proper parties and clear the record of title.
Probate may also be necessary where the decedent passed with outstanding debts. Probate affords creditors an opportunity to come forward and present their claim for payment from the assets of the estate. Typically, once the probate estate is closed, a decedent’s creditor issues are legally resolved.
Probate may not be necessary if the decedent owned all of their assets jointly with another party or in designated beneficiary accounts. Real property held in joint tenancy, payable on death (POD) accounts, health savings or medical savings accounts; life insurance policies; retirement accounts, including IRAs or and 401(k)s; or annuities, are all examples of assets which may not require probate. However, if all of the named beneficiaries listed on the account or policy have predeceased the decedent, or if the decedent didn’t name any beneficiaries, then in most cases the account or policy will need to be probated.
In Florida, probate generally requires the assistance of an attorney and one should always be consulted when attempting to determine if probate is necessary.
How do I begin Probate?
Before beginning probate, the decedent’s will, if any, and death certificate must be deposited with the clerk of the circuit court for the county in which the decedent lived at the time of their death. A filing fee must also be paid. The clerk will then assign a file number and maintain an ongoing record of all documents filed during the administration of the decedent’s probate estate.
What Methods of Probate are Available?
Florida recognizes four methods of estate administration. These are: full administration, summary administration, personal property disposition without administration, and ancillary administration.
- Full administration is the longest and most intricate form of probate. In Florida, full administration requires a “personal representative” who serves to administer the estate. If there is a duly executed will that names a personal representative then the individual or individuals who are named will generally serve as personal representative, provided they meet certain statutory qualifications. If there is no will, then the Florida Statutes follow a hierarchy; the surviving Spouse is the first choice, followed by a person selected by a majority interest of the heirs; and then the heir nearest in degree to the decedent’s prior residence. If more than one heir qualifies, then the court may select the best candidate possible. The personal representative may also be a bank or trust company.
Once appointed, the personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must: identify, gather, value, and safeguard the decedent’s probate assets; locate and notify creditors; settle valid claims and expenses of the probate estate; notify the beneficiaries; and distribute the assets of the estate to the beneficiaries in accordance with Florida law and the decedent’s wishes. To accomplish these goals, the personal representative retains a Florida attorney and other professionals to assist them. If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they suffer.
- Summary Administration is a form of abbreviated probate that is generally available if the value of the estate (not including property which is exempt from the claims of creditors) is less than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive nonexempt estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.
- Personal Property Disposition Without Administration is available only if the probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) up to $6,000 in funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.
- Ancillary Administration is necessary where the decedent resided in another state but owned real property in the State of Florida. In this case, full administration is opened in another state and then a separate administration is opened in Florida to dispose of the real property. The qualifying criteria for ancillary administration tend to be complicated and a Florida attorney should be consulted before proceeding.