Probate is the legal process of administering the property of a decedent. The primary concerns of the probate court are: (i) determining the rightful heirs to property (whether such heirs or designated in a will or by laws of intestacy); (ii) making sure the financial obligations of the decedent are paid; and (iii) transferring legal title of property to the heirs. The probate proceedings are administered through the probate courts which are a division of circuit courts in each of Florida’s counties. In Orlando, Florida, there is a separate division of the circuit court handle probate matters. The Orlando court also appoints specific judges to handle probate matters.
Types of Probate
There are two main probate proceedings: formal probate and summary probate. Determining which to file depends on the amount and nature of property in the decedent’s estate.
Formal Probate is generally filed when the total estate value exceeds $75,000 or in a small estate where there are other issues that require the court’s action or intervention (such as estate debts which exceed the value of estate assets).
Summary Probate is filed when the total estate value is $75,000 or less (excluding real property) or the decedent died two or more years prior to filing. Summary probate can be compared to a small claims case in civil matters. Summary probate does not require the appointment of a personal representative.
Florida law requires that all probate petitions be filed by an attorney, and that an attorney is required to prepare and file all probate pleadings.
Elements of Probate
There are two aspects of a Florida probate. The first aspect of probate is identification and collection of assets which comprise the probate estate. The other part of probate is the administration of the probate estate through the probate process. Probate is conducted by a person appointed by the court to be the decedent’s personal representative. In other states, the personal representative may be called the “executor” of the estate.
The Personal Representative
In Florida, the person who represents the decedent in probate is called a “personal representative.” A formal probate requires a personal representative. Most wills will nominate a personal representative. The Florida Statutes have rules about who may or may not serve as personal representative of a Florida probate. Generally, any Florida resident may serve as a personal representative. An attorney living outside of Florida may also be a personal representative here.
The personal representative is considered under the law as a “fiduciary” (a person who has been selected for a position of special faith, trust, and reliance). The personal representative has a fiduciary duty toward the decedent’s heirs and a duty to properly conduct a probate proceeding. Personal representatives are entitled to be paid a reasonable fee for their service and to be reimbursed for personal money they spend for probate administration such as filing fees and costs.
Florida Statutes have guidelines about reasonable personal representative fees. The Florida Statutes also have guidelines about reasonable attorneys fees including reasonable attorney fees based upon a percentage of the probate estate. In Orlando, Florida, most probate attorneys charge clients less than the statutory attorneys fees.
Florida statutes provide an order of priority for the appointment of a personal representative. In most cases the court will appoint the person nominated by the decedent’s will. A will may nominate two or more persons to serve jointly as personal representative. If a will does not nominate a personal representative, or if the nominee is ineligible to serve or for any other reason is unable or unwilling to serve as personal representative, then the court will appoint a personal representative based upon the statutes’ priority lists.
A person nominated for personal representative may decline the appointment. Once appointed, the court may remove a personal representative for cause such as breach of his fiduciary duties or failure to properly conduct the probate proceeding. A party to a probate proceeding my petition a court to remove a personal representative. A personal representative must be represented by an attorney in all legal matters before the probate court.
A probate administers that property considered part of the "probate estate." The probate estate includes all personal property, all real property other than homestead, and legal rights of action against third parties (i.e. existing or potential lawsuits).... Continue reading