The term probate describes the legal process of distributing the estate of someone who is now deceased (the “decedent”), to the decedent’s beneficiaries. Probate is meant to ensure that the decedent’s assets and property are distributed in accordance with their final wishes, as outlined in their will.
Additionally, the probate process settles any disputes that may result over the decedent’s will and estate. It also determines what will happen to the decedent’s property if there is no valid will in place upon their death.
The probate process differs from state to state, as each state has their own laws concerning intestacy (or, dying without a will). However, the following legal matters are generally accomplished by the probate process:
- Verification that the decedent’s will is legal and valid;
- Identification and inventorying of the decedent’s property;
- Appraisal of the decedent’s property, if necessary;
- Paying off the decedent’s taxes and outstanding debts; and
- Distribution of the decedent’s assets and property to the correct named parties and beneficiaries in the will, or by the laws of intestacy if there is no will.
In Florida, the person in possession of the decedent’s will must file the will within 10 days after learning of the testator’s death, in the county in which the testator resided at the time of their death. Often the person that files the will and files for probate is the named executor in the will. However, any interested party who may be affected by the outcome of the probate proceedings may file for probate or seek to be appointed personal representative of the decedent’s estate.
Once the personal representative of the estate is appointed and a petition for administration has been filed, a Florida court will issue “letters of administration.” This will give the personal representative the legal authority necessary to settle the decedent’s estate. Next, if there is a will, the validity of the will will be determined based on whether the will is self-proving or by the statements of witnesses regarding the will’s validity.
After the validity of the will is determined, the personal representative of the estate will file an accounting. This means that the representative will gather all of the decedent’s property and assets, pay off any debts of the estate, and then distribute the remainder of the estate to the beneficiaries. A notice of accounting will be provided to all interested parties, who will have 30 days to object in court, as to the accounting.
Finally, the personal representative of the estate will file receipts of the distribution with the court and formally petition the court to close the estate. The court will then issue an order that the estate is closed. This will relieve the personal representative from their responsibilities and liability. All in all, the probate process tends to last at least six months, but may take more than six months for more complicated or disputed estates.
Under Florida state probate laws, disposition without administration is also known as a “no probate” filing. This is the process in which probate is deemed unnecessary due to the final expenses of the estate being greater than the value of the estate’s property. In short, disposition without administration may be utilized for very small estates, in which there is no real estate property being left. Any remaining assets are exempt from creditors.
You may file for disposition without administration by requesting the appropriate forms from the county clerk’s office or website in the county in which the decedent resided. Additionally, you will likely be required to provide an itemized statement regarding any funeral or medical bills in which you are seeking repayment for. Such final costs and expenses will be reimbursed from the decedent’s estate, if possible.
Summary administration is another form of the probate process that may be used in Florida, under certain circumstances. Summary administration is only an option for probate where the decedent’s death occurred more than two years ago, or the value of the assets and property of the estate to be distributed is less than $75,000.
When calculating the value of the assets and property to be distributed, it is important to not include property that would not normally go through probate, such as assets held in a living trust, joint tenancy property, or life insurance proceedings, to name a few.
If the estate is eligible, the court will not appoint a personal representative. Rather anyone who stands to benefit from the probate process will file a petition for summary administration, listing the value of the estate’s assets and property and who the property will be distributed to. The court will then issue an order releasing the property to the people named in the petition.
As can be seen, there are multiple processes for probating a will in Florida, and Florida probate laws may be complicated to navigate alone. Thus, it is likely in your best interests to consult with a well qualified and knowledgeable Florida probate attorney.
An experienced probate attorney will be able to explain which probate process is best for your given situation, help you file for probate, as well as represent you in court. Additionally, if there is any conflict regarding the assets or property being distributed in the will, they will be able to represent your interests in court.