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What assets are included in the probate estate?
Simply, property owned solely by the decedent is included in the probate estate (unless otherwise exempted by law). Jointly held property and property with a beneficiary other than the decedent are not considered probate assets. Additionally, real property that is homestead is not included in the probate estate. The value of the probate estate may be a factor in dictating the form of probate administration.
How long does the process take?
It depends. A formal administration may take up to 12 months, and may be extended further. A summary administration significantly shortens this period down to 4 to 6 weeks.
What is probate?
Probate is the court supervised process of accounting for the property of a decedent followed by distribution of that property to the rightful heir(s).
What are the different forms of probate administration?
Formal Administration – The formal and full length administration.
Summary Administration – when the probate estate is valued at less than $75,000 or the decedent has been dead for more than 2 years. This is less cumbersome and quicker than a formal administration.
Ancillary Administration – when the decedent lived outside of Florida but owns property within Florida.
Disposition without administration – when the value of personal exempt property, personal homestead property, and personal non-exempt property does not exceed the sum of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the decedent's last illness.
How much does it cost?
There are many variables that lead to a determination of costs, but, generally, the costs should reflect the complexity of the administration process. In formal administration, Florida law provides for a scheme of presumed reasonable fees based on the value of the probate estate. Other forms of administration may be more economical as a reflection of lesser complexity.
What if the decedent didn't have a will?
Without a will, the decedent's assets will be distributed by operation of law, known as intestacy. The Florida intestacy laws detail the proper distribution of assets when there is no will. This point highlights the importance of having a will. For example, a married couple who have children together and one spouse dies (without a will), the surviving spouse gets the first $60,000 plus one half the balance of the estate. But, if one spouse dies and has a child who is not the child of the surviving spouse, then the surviving spouse will only get one half of the estate. A properly drafted will may better distribute property, reflecting the true intent of the decedent.
Must I have an attorney to probate the estate?
The answer is most likely, yes. However, if the personal representative is also the sole interested person (and no creditors exist), then no attorney is required. Also, an attorney may not be required, if the estate (very small estate) only includes certain personal property where its value does not exceed the sum of preferred funeral expenses and qualified medical expenses of the last 60 days of the last illness.
The Florida probate laws can be very challenging, even in the smallest of estates, highlighting the importance of attorney involvement.
What is a personal representative?
The personal representative (PR) is responsible for handling the estate through the probate process. Generally, the PR gathers necessary information and documentation regarding the estate, takes possession and control of all assets, inventories assets, pays off creditors, closes accounts, invests assets, sells property, and distributes estate assets. In other states the PR may be called administrator or executor.
Who gets to be the personal representative?
If there is a will, the PR is generally named by the decedent. If there is no will (intestacy), the court may select the one best qualified from: surviving spouse, one selected by majority in interest of the heirs, or the heir nearest in degree.
What are the qualifications necessary to be the personal representative?
Must be a resident of Florida at the time of the decedent's death, unless:
What happens if the debt of the estate exceeds the value of the assets?
The heirs may take nothing. The available assets will be utilized in paying the debt of the estate. Florida law dictates an order of hierarchy in determining what type of debt gets paid first. It is important to understand that if the assets are considered "homestead" property or otherwise exempt, they may descend to the heirs irrespective of the remaining debt.
What if many years have passed and the estate has never been through probate?
There is no time limit to probate the estate. This situation may occur as a cloud on title to real estate affecting its marketability. The probate process can help clear the title.
What are the positive aspects of the probate process?
It insures that the estate assets are properly distributed as to the intent of the decedent (if there was a will) or according to the Florida statutes (if there was no will).
When a Notice to Creditors is published, it significantly shortens the time for creditors to state a claim against the estate from 2 years to 3 months (30 days if personally served).
It facilitates the later transfer of real property title.
