Florida Probate Guide
Serving You and The State of Florida
After the loss of a loved one, you may be unsure about what happens next – while still dealing with your grief. Most people are not familiar with probate, or what exactly they need to do in order to distribute the assets in their family member’s will. If their loved one died without a will, then they may even be more overwhelmed at the prospect of figuring out what to do next.
In Florida, estates must go through a legal process known as probate before assets can be distributed. Probate is a court-supervised process whereby heirs are identified, assets are gathered, and debts are paid. Depending on the size of the estate, it may go through a lengthier formal estate process or a simplified summary probate administration.
Probate is a complex, technical process that can be challenging for anyone who is not experienced with it. Our Florida probate guide provides a broad overview of what probate is and what you have to do as part of the administration of an estate. If you have any questions or would like assistance probating your loved one’s estate, call the Lopez Law Group to schedule a consultation with a St. Petersburg probate attorney.
What Is Probate?
Probate is a court process that is used when a person dies to collect their assets, pay their debts, and transfer their assets to their heirs. It may also be referred to as estate administration.
In probate, the person who died is referred to as the decedent. Any property that they owned at the time of their death is known as their estate. An estate can contain real property, bank accounts, jewelry, motor vehicles, and any other assets that they owned at the time of their death.
If the decedent had a valid last will and testament when they died, then their assets will be divided to their beneficiaries in accordance with the terms of their will. If they died without a will, then their assets will be divided among their next of kin (heirs) in accordance with Florida’s laws on intestate succession. Whether a person died testate (with a will) or intestate (without a will), their estate will have to go through probate.
Florida’s Probate Code governs probate in Florida. There are two types of probate in Florida: formal administration and summary administration. As described in greater detail below, summary administration is a simplified, streamlined process that can be used for smaller estates (valued at $75,000 or less in non-exempt assets) or for situations where the decedent passed away two or more years prior to probate being opened.
The assets of an estate cannot be distributed until the beneficiaries or heirs are identified and the proper probate documents are submitted to the court. In addition, a judge will have to sign orders to allow the property to be distributed after being satisfied that all interested parties have been notified, all creditors have been paid, and any disputes have been resolved.
Probate can be a complicated, time-consuming process. Many people do not have the time, knowledge, or desire to administer an estate. A seasoned St. Petersburg probate attorney can shepherd you through the process, allowing you to focus on grieving and spending time with your loved ones.
What Assets Are Subject to Probate in Florida?
Any asset that a decedent owned at the time of their death is subject to probate. However, there are exceptions to this general rule. If the asset had a named beneficiary or a right of survivorship, then it will not have to go through probate.
For example, a life insurance policy or retirement account will usually have a named beneficiary. The proceeds of the policy or the account will go directly to the named beneficiary without having to go through probate.
Similarly, property that is held with a right of survivorship will automatically pass to the survivor. This often occurs with property that is purchased by spouses in a “tenancy by the entirety.” When one spouse passes away, the title will automatically transfer to the surviving spouse.
All other properties will have to go through probate in order to change ownership. This may include everything from real estate to motor vehicles to bank accounts to personal property. An experienced Florida probate lawyer can help you determine which assets must go through probate by examining policies, account statements, and/or property deeds.
How to Probate a Will in Florida
There are eight basic steps to probate a will in the state of Florida. In many cases, a person who has been named as the executor in the will starts the process by meeting with a probate attorney. A lawyer can help you gather the necessary documents, review the decedent’s assets, and file the necessary paperwork.
Step One: File a Petition with the Probate Court
The first step in any probate case starts with filing a Petition for Administration. This petition and any related documents must be filed with the probate court where the decedent resided at the time of their death. This document is usually filed by the executor of the estate, who is usually named in a person’s will. If the decedent died intestate, then Florida law governs who has a preference to act as the personal representative of the estate.
At the time of filing, any beneficiaries named in the decedent’s will are formally notified that the estate is open. When a person dies without a will (intestate), then part of the probate process will involve identifying and notifying any heirs.
After the Petition for Administration has been filed with the probate court, a judge will issue a Letters of Administration. This indicates that the petition has been granted, and designates the executor as the decedent’s personal representative. Once the personal representative has been named, they can then proceed with various estate administration tasks, including opening up an estate account.
There are two types of probate: summary and formal administration. Summary administration is faster, less expensive, and less involved than formal administration. The above process describes how to start probate for formal administration.
To qualify for summary administration, an estate must have $75,000 or less in non-exempt assets or belong to a decedent who passed away more than two years ago. If an estate qualifies, then a Petition for Summary Administration is filed with the probate court.
Interested parties – including heirs/beneficiaries and known creditors – are provided formal notice of the proceeding via certified mail. They then have 20 days to object to the petition. If you have questions about summary administration and whether an estate qualifies for it, reach out to a Florida probate attorney.
Step Two: Notify Creditors
The next step in the process is to contact the decedent’s creditors to notify them that the estate is open. If creditors are known, then they can be contacted directly. The personal representative must also publish a general Notice to Creditors in a local newspaper at least once a week for two consecutive weeks.
Creditors have three months from the date that notice is published to file any claims against the estate. The personal representative is tasked with making a list of creditors and outstanding debts during this time period. This list will ultimately be filed with the court.
Step Three: Perform an Inventory of Assets
Once the personal representative has a better understanding of the decedent’s debts, they can determine their total net worth. This involves performing a thorough inventory and valuation of the decedent’s assets – such as bank accounts, stocks, bonds, mutual funds, real property, vehicle titles, and other personal property. A list of assets is then made and filed with the probate court.
Importantly, some assets are exempt from creditors’ claims and should include a notation that they are exempt. If a decedent had a spouse or children at the time of their death, then their homestead property, two vehicles, household furnishings, and up to $1,000 in personal property cannot be used to pay debts. A homestead property is the decedent’s primary residence.
Step Four: Pay Valid Debts
Three months after the decedent’s creditors were notified that the estate had been opened, the personal representative must pay any valid debts. Any claims received after the notice period are considered invalid and can be disputed by the estate.
Debts are paid using any cash available in the decedent’s estate account. If there are insufficient funds to pay creditors, then other estate assets – such as real property – may be sold to satisfy the debts.
Step Five: File Estate Taxes
Once the assets have been inventoried and any debts paid, then a final income tax return must be filed with the Internal Revenue Service (IRS). At this time, any estate taxes must also be paid.
The personal representative is considered a fiduciary of the estate. As such, if they fail to pay taxes, they could be held personally responsible for any unpaid taxes, penalties, and/or interest. For this reason, most personal representatives choose to work with a Florida probate lawyer who can assist them with estate taxes and other aspects of the probate process.
Step Six: Do a Final Estate Accounting
At this point, the personal representative should do a final estate accounting. Throughout probate, they should have been keeping detailed records of the estate’s assets, any distributions made to creditors, probate fees, attorney’s fees, and their own personal representative fee. These records must be organized in order to determine what remains in the estate after all obligations have been met.
Step Seven: Distribute Assets
Once the accounting has been performed, then distribution can be made. If the decedent died with a will, then their named beneficiaries will receive their inheritances in accordance with the will’s instructions.
If the decedent died intestate, then any remaining assets will be distributed pursuant to Florida’s intestate succession laws. These laws are complicated, but as a general matter, closer family members (spouse and children) are entitled to inherit first. If the decedent did not have a surviving spouse or children, then their parents, siblings, and/or more distant family members may inherit.
Step Eight: Close the Estate
The last step in the process is to close the estate. This requires filing a petition with the probate court to close the estate and discharge the personal representative from their fiduciary duty. Once the court issues an order to close the estate, probate has ended.
Florida Probate and Out of State Residents
If a decedent was a Florida resident at the time of their death, then the probate case must be filed in the county where they resided. However, many people live outside of Florida and own property in the state. In this situation, the probate case must be filed in the county where their property was owned in a process known as ancillary administration.
With ancillary administration, a primary probate case is filed in the decedent’s home state. A separate probate case (ancillary probate) will be filed in Florida if they owned property here but were not residents of the state. Lawyers in each state will coordinate to ensure that the probate is done correctly.
People who own property in multiple states may benefit from skilled estate planning. Trust-based estate plans may allow an individual to minimize probate – including the necessity of probate in multiple states. Reach out to an experienced St. Petersburg estate planning attorney to learn more about how you can set up your estate plan to reduce the time and expense associated with probate.
How Long Does Probate Take in Florida?
Formal administration can be a lengthy, time-consuming process. Once a Petition for Administration has been filed, it can take a year or longer to probate the estate. This is broken down into three phases:
- Opening the estate (4 to 6 weeks): the petition is filed, a personal representative has been appointed, and a court has issued the Florida letters of administration.
- Administering the estate (6 to 8 months or longer): creditors are notified, assets are collected, debts are paid, and assets are distributed.
- Closing the estate (4 to 6 weeks): a petition to close the estate is filed and a court issues an Order of Discharge.
This time period can be shorter for relatively simple estates, or significantly longer if there are complicating factors. This may include filing a wrongful death lawsuit on behalf of the estate, or a dispute among the beneficiaries.
By contrast, summary administration is usually a fairly quick process. If no interested parties contest the case, then summary administration could be concluded in as little as 8 weeks. However, this process can generally only be used for small estates.
How Can A Florida Probate Lawyer Help?
In Florida, a probate lawyer is required in most cases to guide the personal representative through the process. Having the right probate attorney can make the difference between a relatively smooth administration and a mess.
Your attorney will start by educating you about Florida probate law and how it applies to their case. They will start by analyzing the estate documents to determine who is entitled to the decedent’s assets. Once the beneficiaries or heirs have been identified, then the lawyer will draft the appropriate petitions and file them in county probate court.
Once the proper paperwork has been filed, then the lawyer will send notices to interested parties and notify creditors that the estate has been opened. They will resolve issues that may arise, and advise you about any potential disputes or threatened litigation. After assisting the personal representative with the accounting and other administrative tasks, they will file the appropriate orders to close the estate.
Having a skilled probate lawyer can help you avoid potential pitfalls and reduce the likelihood of litigation over the estate. In Pinellas and Sarasota counties, reach out to the Lopez Law Group for assistance with both formal and summary estate administration.
Reach Out to Talk to Experienced Florida Probate Attorneys
The probate process requires a substantial amount of time and attention to detail. If you are appointed as a personal representative of an estate, you will need to manage court filings, notifications to creditors, property valuation, estate taxes, and more. As a fiduciary of the estate, you will also have to keep detailed records that will be used to support the probate case.
At the Lopez Law Group, we have significant experience in all aspects of Florida probate law, including formal administration, summary administration, and ancillary probate. We work with personal representatives to make the process as easy and stress-free as possible. In each case, our goal is to ensure that the probate is performed properly and in a way that maximizes the distribution to heirs and beneficiaries.
If you would like to learn more, give our law office a call at 727-933-0015 to schedule a consultation with a Pinellas County probate attorney. You can also fill out our online contact form or text us at 727-370-9157 to set up an appointment.
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