In Florida, probate takes 6-9 months. More complicated situations may take longer. The probate is finished once the court enters a formal discharge.
What Is Probate?
In Florida, probate is the legal process through which a court administers the provisions of a decedent’s last will and testament. Probate is designed to pay the decedent’s creditors and transfer the decedent’s property to heirs designated in the will.
The general rule is that all assets in the decedent’s personal name require probate. Probate is not required for assets that transfer to designated individuals by contract and that are exempt from the decedent’s creditors, such as retirement accounts, life insurance, and tenants by entireties property. Assets that are subject to probate comprise “the probate estate.”
How Does Probate Work?
Florida’s probate law and procedures are expressed in the Florida Probate Code in Chapters 731 through 735, Florida Statutes. The Florida Statutes provide two types of probate: (1) summary probate and (2) formal probate.
Determining which type of probate to file depends on the amount and nature of the property that the decedent owned and the decedent’s date of death.
Homestead properties are not subject to probate, nor are properties that automatically transfer on death to a beneficiary via a lady bird deed.
Steps to Florida Probate
To complete a probate in Florida, the following steps must be completed:
- File the original will with the Court.
- File the petition for administration and order admitting the original will to probate.
- Notification of the beneficiaries.
- The court issues letters of administration.
- Issuance of a notice to creditors.
- Consolidation of assets.
- Pay estate taxes, if any.
- Final accounting.
- Distribution of assets to beneficiaries.
- Formal discharge.
Often the most time-intensive step of the Florida probate timeline is the consolidation of assets, which includes transferring assets to a probate account, selling property, and managing existing assets. Fewer assets leads to a quicker probate.
How Long Do You Have to File Probate?
You have to file the will within 10 days after a person dies.
Once the will is filed, you can file a petition to start the probate. If the person died without a will, then you can file the probate directly after the person’s death.
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Benefits of Filing Probate
Probate is the court-supervised process of administering a deceased person’s estate, including distributing assets to beneficiaries. The benefits of filing probate in Florida, as in other states, include the following:
- Ensures Legal Distribution of Assets: Filing for probate ensures that the deceased’s assets are distributed according to their will or, if there is no will, according to Florida’s intestacy laws. The court oversees the process, making it difficult for anyone to dispute the will’s validity or the assets’ distribution.
- Pays Debts and Taxes: The probate process ensures all valid debts, taxes, and final expenses of the deceased person are paid before the remaining assets are distributed to the heirs. This protects the heirs from unexpected liabilities after the distribution of the estate.
- Clears Title to Property: Probate can clear the title to real estate and other assets, making them easier to sell or transfer. This can be particularly beneficial for heirs or beneficiaries.
- Identifies Heirs: If a person dies without a will (intestate), the probate court will determine the rightful heirs according to Florida’s intestacy laws.
- Provides a Final Accounting: Probate requires a final accounting, which gives an overview of how the estate’s assets were managed and distributed. This can provide closure to the heirs and beneficiaries.
- Prevents Fraud: The court-supervised process helps prevent fraud or theft in managing the deceased’s estate.
- Resolves Claims Against the Estate: The probate process establishes a mechanism and a time frame for creditors to file claims against the estate. Claims not properly filed within the prescribed time frame may be barred, helping to protect the estate and its beneficiaries.
Reasons to Avoid Probate
While the probate process has its benefits, there can also be several disadvantages:
- Time-Consuming: Probate can be a lengthy process. In some cases, it may take several months or even years to complete, particularly if the estate is complex or there are disputes among the beneficiaries.
- Expensive: Probate can also be costly. There are court costs, executor fees, attorney fees, and potentially other expenses. These costs are paid out of the estate’s assets, reducing the amount left for the beneficiaries.
- Lack of Privacy: Probate is a public process. The deceased person’s will (if one exists) becomes a public document, and other information about the estate may also be accessible to the public. This can be an issue for those who value privacy.
- Potential for Disputes: The probate process can sometimes lead to disputes among family members, particularly disagreements over the interpretation of the will or the distribution of assets.
- Complexity: Probate laws and procedures can be complex, and navigating them often requires legal expertise. This can add to the stress of dealing with a loved one’s death.
- Asset Management: Depending on the length of the probate process, some assets may need to be managed during this time. This can be difficult, especially if the assets require specific expertise to manage or if they decline in value during the probate process.
- Delayed Access to Inheritance: Because probate can take a long time to complete, beneficiaries may not have access to their inheritance for a prolonged period.
To mitigate some of these potential issues, many people use estate planning strategies, such as trusts, to avoid probate.
Ancillary Administration Process in Florida
In Florida, ancillary administration is the process to probate a Florida home or other real property for a non-resident decedent.
In other words, if a resident of another state dies while owning a home in Florida, such as a rental or vacation home, then the executor of the deceased person’s estate must start a separate Florida probate just to handle the Florida property.
Ancillary administration proceedings are governed by Florida Statute 734.102. Like regular probate, the first step in ancillary administration is to appoint a personal representative.
Unlike with a Florida decedent, the personal representative, or executor, in an ancillary probate does not need to be related to the deceased person or a Florida resident. Instead, if the personal representative is qualified to serve under the laws of the state where the deceased individual died, then the personal representative will be qualified to serve in Florida. Otherwise, ancillary administration will proceed using regular probate procedures.
Personal Representative in a Florida Probate
Formal probate is required when the total estate value exceeds $75,000 or a probate estate of any size that requires the probate court’s intervention (such as transfer of real estate, creditor claims, or matters concerning the heirs).
Formal probate is conducted by a person appointed by the court to be the decedent’s personal representative. The personal representative works the decedent’s behalf to administer the probate estate and represent the decedent in any other legal matters. A personal representative must be represented by an attorney in all legal matters before the probate court.
The personal representative’s primary duty is to protect and preserve the probate assets and see that the assets are invested prudently and cautiously. The personal representative has possession and control of all assets of the estate during a Florida probate.
Florida Statutes have rules about who may serve as personal representative of a Florida probate. Generally, a decedent’s family member, wherever located, or any other Florida resident over the age of 18 may serve as a personal representative. An attorney wherever located may also be a personal representative in a Florida formal probate.
In most cases, the court will appoint the person nominated in the decedent’s will as personal representative. If a will does not nominate a personal representative, or if the nominee is ineligible, unable, or unwilling to serve as personal representative, or if there is no will, the court selects a qualified personal representative.
A person nominated as a personal representative may decline the appointment. Once appointed, the court may remove a personal representative for cause such as failure to properly conduct the probate proceeding. Any party to a probate proceeding may petition the court to remove a personal representative for cause.
Florida law considers the personal representative a “fiduciary” (a person in a position of special faith, trust, and reliance). The personal representative has a fiduciary duty toward the decedent’s creditors and heirs and must conduct the probate proceeding properly. Personal representatives are entitled to a reasonable fee for their services and to be reimbursed for any personal money spent for probate administration, such as attorney’s fees, filing fees, and costs. Section 733.617 of the Florida Statutes states guidelines about reasonable personal representative fees. Section 733.6171 expresses guidelines about reasonable probate attorney’s fees based upon a percentage of the probate estate. Most practicing probate attorneys charge clients less than the statutory attorney’s fees.
Florida Probate Procedure
The formal probate process, referred to as the administration of the probate estate, begins with filing the original will with the court and the preparation and filing of a petition for administration. A probate judge will sign an order admitting the decedent’s will for probate and will issue “letters of administration” appointing the estate’s personal representative.
The attorney for the estate will provide the personal representative with certified copies of the letters of administration (which are evidence of the personal representative’s legal authority). The estate’s attorney sends copies of the letters of administration to parties they believe are involved or interested in the probate. Beneficiaries of the estate will be sent copies of a notice of administration by certified mail if they have not previously waived notice.
The personal representative’s first task is to identify the decedent’s creditors to whom the decedent owed money or who had legal claims against the decedent. A primary function of probate is to allow the decedent’s creditors to be paid from estate assets. Typical creditors in a probate proceeding are the decedent’s mortgage company, funeral expenses, and health care professionals who provided medical care during the decedent’s last illness. The personal representative’s attorney notifies any party the personal representative knows, or has reason to believe, that may have a claim against the decedent’s estate. The personal representative’s attorney must also notify potential and unknown creditors by publishing a legal notice in the newspaper.
During the early stages of the administration, any creditor having a claim against the decedent must file a claim with the probate court. The court will send the personal representative’s attorney a copy of all claims filed. The personal representative should review claims filed to determine whether each claim is valid. The personal representative may object to any claim that they believe is incorrect. Objections are usually resolved by mutual agreement.
If the parties cannot reach an agreement, creditor disputes are resolved by the probate judge. Once the personal representative or the court determines the validity of contested creditor claims filed, the personal representative pays the claims (either in total or in a prorated amount).
Securing Probate Assets
The personal representative’s other primary job is to identify, assemble, and secure probate estate assets. A personal representative should compile a list of assets as soon as possible after their appointment. The personal representative should maintain adequate insurance coverage of tangible personal property or improved real property. A list of all assets in the probate estate and their values must be filed with the court in the form of a probate inventory.
Another part of the estate proceedings is determining whether the estate is required to file federal tax returns. Personal representatives will likely file an income tax return for the decedent for the tax year of their death and for each year during probate if the estate has more than $600 in income during the tax year. Some probate estates also file an estate tax return for estate tax planning purposes or if the total taxable estate exceeds the applicable estate tax credit.
Just because the law requires that a tax return be filed does not necessarily mean that tax is due. The personal representative must retain sufficient funds to pay any taxes due as the probate closes. The law permits the IRS, and in some situations, the State of Florida, to collect unpaid taxes from the personal representative’s personal assets.
After payment of claims and resolving any disputes, the personal representative distributes any remaining probate assets to the heirs named in the will. First, the personal representative distributes estate assets to satisfy any specific bequests in the will. A specific bequest is an instruction in the will to distribute a specific asset, such as real estate, or a fixed amount of cash, to one or more persons or a charity.
Often, estate beneficiaries will ask the personal representative to prematurely distribute assets of the estate. The personal representative may be held individually responsible for early distributions when the representative later learns that the money distributed is needed to pay estate expenses, federal taxes, or required distributions. The personal representative should never distribute money to an heir without first contacting their attorney.
Closing the probate administration requires a formal accounting. The accounting includes all legally significant activities during probate administration, evidence that creditors’ claims and taxes have been paid, and a statement that the remaining estate property has been distributed in proper shares to the persons entitled under the decedent’s will. The proposed accounting is distributed to all beneficiaries who then have an opportunity to object.
Alternatively, the formal accounting may be waived by the unanimous consent of the beneficiaries. Beneficiaries waive a formal accounting in most estates because the accounting can be expensive. The personal representative’s attorney files the formal accounting or accounting waivers with the probate court. The court reviews the accounting and other legal forms involved in closing the estate. If all forms are in order, the judge will sign an order discharging the personal representative. This order effectively closes the probate case.
Cost of Probate in Florida
In most cases, the cost of probate will be about 3% of the value of the estate. The main cost of probate is attorney fees. Under Florida law, attorneys are entitled to reasonable fees. Most judges uphold reasonable fees that are between around 3% of the estate. Estates of $100,000 or less sometimes have legal fees of more than 3%.
FAQs about Florida Probate
How long does probate take in Florida?
It takes a few months for a simple summary probate, but 9-12 months for a formal probate administration. More complex probate cases can take longer, but this is rare.
Is probate in Florida difficult?
In Florida, probate is difficult because of the complexities and complications found in the Florida probate statutes. While other states have worked to streamline the probate process for most people, the structure of Florida probate means that having an attorney is almost required.
How much does it cost to file a summary administration in Florida?
The cost of summary administration is between $2,000 and $3,500. The amount depends on (1) the experience of the attorney, (2) the number of assets being probated, and (3) the existence of any creditors.
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