Probate is a legal procedure that is overseen by Florida courts to settle a deceased person’s estate and ensure the proper handling of assets and liabilities. The probate process is governed by Florida’s Probate Code and aims to validate wills, pay outstanding debts, and distribute assets to rightful heirs or beneficiaries.
Although the probate process is necessary, probate can still be incredibly complex. However, it is important for all parties to understand the steps and nuances involved in the process, especially in cases where an individual died intestate (i.e., without a will).
Florida law provides two main approaches to probate administration based on the size and complexity of the estate:
- Formal Administration: This is the standard procedure for larger or more intricate estates, and it requires the court to appoint a personal representative, who is responsible for managing the estate
- Tasks included in formal administration include settling debts, filing taxes, and distributing the remaining assets
- Summary Administration: This is a streamlined and less costly process that is available if the value of the estate’s non-exempt assets is $75,000 or less, or if the decedent passed away more than two years ago
- This process is quicker than formal administration but still requires court approval
In addition to the above approaches to probate administration, Florida also offers a unique option for estates that meet specific criteria. The process is known as disposition of personal property without administration, and it applies when the estate holds minimal personal property and does not require formal proceedings.
The probate process in Florida generally follows a structured sequence of events:
- Initiating the Process: First, a petition is filed with the circuit court in the county where the decedent lived which begins initiating probate
- If a will exists, the court determines its validity and identifies the personal representative (also known as the “executor”) named in the document
- Notifying Interested Parties: Heirs, beneficiaries, and creditors will then be notified of the probate proceedings
- Creditors will also be given a specific period, usually three months, to file claims against the estate for any unpaid debts
- Identifying and Valuing Assets: The personal representative will then identify the deceased person’s assets, such as real estate, bank accounts, investments, and personal belongings
- All of this will be inventoried and assigned a monetary value
- Hearing: A hearing will then occur in a probate court where the will is probated or an heirship proceeding occurs, and the executor will then be given letters of testamentary
- Paying Debts and Expenses: Before distributing assets, the representative will utilize estate funds to pay the decedent’s debts, taxes, and administration costs
- It is important to note that these obligations are prioritized according to Florida law
- Distributing Remaining Assets: After all debts and expenses are settled, the remaining assets will then be distributed to heirs and beneficiaries
- Once again, if the decedent left no will (i.e., died intestate), Florida’s intestacy laws will dictate how the estate is divided among surviving relatives
Even though probate serves an important legal purpose, many Florida residents will seek to minimize or avoid it to save time and reduce costs. Common strategies to avoid the probate process include:
- Revocable Living Trusts: By transferring assets into a trust during their lifetime, individuals can bypass the probate process entirely
- Joint Ownership with Rights of Survivorship: Property owned jointly with another person, such as a spouse, passes directly to the surviving owner upon death
- Payable On Death (“POD”) Accounts: Bank accounts and other assets can be set up to transfer directly to designated beneficiaries without the need for probate
What Is a Probate Attorney?
A probate attorney in Florida is a legal professional that is knowledgeable in estate planning and the probate process that guides individuals and families through the probate process. As noted above, probate involves the court supervised administration of a deceased person’s estate.
A Florida probate attorney ensures that assets are distributed according to the decedent’s will or Florida’s intestacy laws if no will exists. Florida lawyers play a crucial role in navigating the complexities of probate law, protecting the interests of beneficiaries, and ensuring compliance with legal requirements.
Although not all estates require probate, a probate attorney is often necessary for:
- Estates with significant assets or complex legal issues
- Cases involving disputes among heirs or creditors
- Instances where the decedent did not leave a will
What Does a Probate Attorney Do in Florida?
The probate process in Florida is governed by the Florida Probate Code, which is codified in Chapters 731 through 735 of the Florida Statutes. For instance, Section 733.602 outlines the duties and responsibilities of the personal representative, emphasizing their fiduciary role in managing the estate.
Probate attorneys in Florida provide numerous different services, including:
- Validating the Will: If the decedent left a will, the probate attorney assists in proving its validity in court, including addressing any challenges or disputes that may arise
- Estate Administration: The attorney helps the personal representative (i.e., the executor) manage the estate, including inventorying assets, paying debts and taxes, and distributing remaining assets to beneficiaries
- Resolving Disputes: Probate attorneys are able to mediate conflicts among heirs, beneficiaries, or creditors, ensuring a fair resolution
- Legal Compliance: Lawyers will ensure that all actions taken during the probate process comply with Florida’s Probate Code, as outlined in Chapters 731 through 735 of the Florida Statutes
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How Much Does a Probate Attorney Cost in Florida?
The cost of a probate attorney in Florida will depend on various factors, including the complexity of the estate and the attorney’s fee structure. Attorneys may choose to charge hourly rates, typically ranging from $250 to $500, or contact for a flat fee arrangement, which can start at $1,500 and go significantly higher for intricate cases.
Florida law also suggests reasonable compensation based on the estate’s value, such as 3% for the first $1 million and 2.5% for values between $1 million and $3 million. Besides attorney fees, additional costs may increase the total cost of a probate attorney, like court filing fees, publication expenses for notifying creditors, and asset appraisal fees may apply.
Additionally, factors such as estate size, the number of beneficiaries, and disputes over the will can further influence the total cost. Contested cases will generally cost more than an uncontested case that has a valid will.
How Long Does the Probate Process Take In Florida?
The duration of the probate process in Florida will depend on the type of administration and the complexity of the estate. For formal administration, which is common for larger estates, the process will typically take 6 to 12 months. However, it can extend further if disputes or complications arise.
Summary administration, a simplified process for smaller estates, may take only a few weeks to a few months. Additionally, Florida law requires that notice to creditors and other interested parties, including unknown heirs, be published in a local newspaper.
Creditors and unknown heirs will then generally have 90 days from the date of the first publication to file claims against the estate. This waiting period is outlined in Section 733.2121 of the Florida Statutes, which governs notice requirements in probate proceedings.
Should I Hire a Probate Attorney?
If you are an individual dealing with the probate process or a personal representative tasked with handling an estate, it is strongly advised to set up a legal consultation in Florida with a Florida probate attorney. LegalMatch can assist you in locating and setting up a legal consultation with a lawyer that understands Florida probate laws.
Probate lawyers will have knowledge regarding Florida probate law and can help you navigate the complexities of estate administration, while also ensuring compliance with legal requirements.
As noted above, a probate attorney can assist with various aspects of the process, such as validating wills, managing estate assets, settling debts, and distributing property to beneficiaries. They are also instrumental in addressing any disputes that may arise among heirs, creditors, or other interested parties.
Working with a knowledgeable probate attorney ensures you receive tailored legal advice that aligns with Florida’s specific probate statutes, such as those outlined in Chapter 733 of the Florida Statutes. For personal representatives, a probate lawyer can guide you in fulfilling your fiduciary duties and reducing liability risks. For beneficiaries or other interested parties, an attorney can review estate documents to protect your legal rights and interests. Finally, they can also represent you in court, when necessary.
