ISSUES INVOLVING PROBATE
The Probate process in Florida can be confusing and time-consuming. Pittman Law Office is committed to helping clients overcome issues that arise when family members or friends deal with closing out the estate of a deceased loved one. Here are some frequently asked questions.
What is Probate?
Probate is the court proceeding in which the Probate court assumes jurisdiction over a decedent’s assets. By assuming jurisdiction over the asset, the Court will award that asset to whomever is designated under the terms of a Will. If the decedent died without a Will, the Court will award the asset to the heirs of the decedent as determined by Florida law. The Probate process also includes identifying and handling the decedent’s debts.
Is Probate Always Required When Someone Dies?
No, Probate is not required. A Probate administration is only filed when it is needed to deal with specific issues related to a decedent’s estate such as unfreezing an asset that is in a decedent’s name alone. In many situations, a good estate plan can minimize or eliminate the need for Probate.
When is Probate necessary?
Probate is necessary if there is an asset in the sole name of the decedent and there is no named beneficiary for the asset. For example, if you are the sole owner of a checking account and you do not list a beneficiary on that checking account, then the Probate court has the power to award ownership of that checking account to your heir. Another common example is real property. If your home is titled solely in your name, then a Probate case would be necessary, at your death, to transfer title to your home to your heirs, as determined by your will or Florida law, if there is no will.
What if the decedent had a Will?
A Last Will and Testament does not avoid Probate. The Will identifies those you want to receive your Probate assets and whom you want to be named as the Personal Representative/Executor. The Personal Representative will be appointed to account for all Probate assets, value the estate and pay off any debts before distributing what is left of the estate among the beneficiaries, according to the will.
When is Probate not necessary?
If all assets owned by a decedent have designated beneficiaries, then the named beneficiaries will receive the asset directly and there will be no need for the Probate court to be involved. These assets may include bank accounts, investment accounts, life insurance policies, annuities and/or retirement accounts. In addition, if the decedent has a properly drafted and funded Revocable Living Trust, then Probate may be avoided.
What if the decedent did NOT have a Will?
If there is no Will, then Florida law will determine the legal heirs who will inherit your Probate assets. The only assets that have to go through Probate are those assets that are in the name of the decedent alone without a named beneficiary. Under Florida law, your spouse will inherit your estate assets completely unless you have children from a previous relationship. If so, those children inherit one-half and the spouse will inherit one-half. If there is no spouse, the children will inherit your estate assets. If the decedent is not married at the time of death and had no children, the decedent’s family will inherit the estate in a line of succession. Someone will also have to step forward to act as the Personal Representative/Executor of the estate. That person must be over the age of 18 years, a Florida resident OR a relative of the decedent.
Am I responsible for the decedent’s debts?
In most situations, family members are not personally responsible for the debts left behind by a decedent. If debts are to be paid, it is typically from the Probate estate. Florida law allows creditors to file a claim against the Probate estate if they follow the Court rules. There are strict time limits involved and if the creditor does not file a timely claim, they will be barred from proceeding. Also, creditors must file a claim within two years of the decedent’s death for any consideration of payment.
If I am named as the decedent’s Personal Representative in the decedent’s Will, isn’t that enough for me to act on behalf of the estate?
No. The Will lists the person or persons that the decedent nominates to fill the role of the Personal Representative. That nomination is not binding on the person listed. That person may not want to act as the Personal Representative. That person may not meet the legal requirements to be the Personal Representative. The Probate Court must review the nomination and formally appoint the Personal Representative. Only then can the person undertake action on behalf of the decedent’s estate. This appointment is part of a formal administration.
How long does Probate take and how much does Probate cost?
The Probate process is dependent upon the nature of the assets and debts that need to be Probated. Florida offers several types of Probate proceedings. The costs and duration of the Probate process depends on the type of Probate filing.
First, a summary administration is available for estates that have assets with a total value of less than $75,000 or the decedent’s death was more than two years ago and/or there is homestead real property to be transferred (the value of the homestead property is not calculated into the $75,000 maximum estate value). Summary administration also requires that the estate has no creditors. Generally, the summary administration can be completed in 90 days and the cost is a flat fee.
Second, a formal administration is the Probate process for estates with assets exceeding $75,000 and/or estates with creditors. As formal administration is a more intensive process, it typically can take 9 months to complete and the cost is a percentage of the Probate estate assets.
Lastly, if the estate is very small, most counties allow a quick and informal Probate filing that does not involved attorneys. In general, this process may be available if the assets for Probate do not exceed the value of the funeral expenses and or medical bills incurred in the last 60 days prior to the decedent’s death. Essentially, it is a method for the next of kin to be reimbursed for these types of expenses paid.
Contact Pittman Law Office
Please reach out to Pittman Law Office with any questions about your specific situation. Keep in mind that every estate is unique. We also provide assistance to the surviving spouse/partner even when a probate or trust administration is not necessary.
