Probate is a legal process provided by Florida Law which appoints a Personal Representative to administer your estate, determine the assets you own and their value, pay valid claims of creditors, and concludes with the payment of taxes and then the legal transfer of your assets to the beneficiaries.
If you do not have a Last Will & Testament when you die then Florida intestacy law determines who inherits and who does not inherit. Generally, the intestacy law provides for inheritance by the next-of-kin (blood relatives). If you are in a relationship with someone and are not married the intestacy law does not provide an inheritance for that domestic partner.
Be cautious about listening to advice from neighbors, friends and family about probate. Much of what you will hear is rumor based on lack of correct knowledge. If you have heard that probate takes a long time to complete that is not what most people experience. Our federal tax law provides that decedents whose gross taxable estate exceeds a certain limit ($11.2 million for 2018) must file a federal estate tax return (Form 706) within nine (9) months of date of death. In that situation it can take several months for the certified public accountant hired by the Personal Representative to prepare the estate tax return (sometimes appraisals of property are required), and file it. The Internal Revenue Service can take several months to review the return before it issues either a Closing Letter (accepting the return and the tax paid) or, audits the return and issues a notice disagreeing with the return. The Probate Court will not close a probate estate where a federal estate tax return has been filed until the Personal Representative files a copy of the Closing Letter. This is why a probate proceeding can take longer in a situation where the decedent’s assets exceed the taxable estate limit.
Last Will & Testament
When you hire me to create your estate plan, including a Last Will & Testament, some of the benefits are:
- You select the Personal Representative who will be responsible for administering your estate. You may wish to name a corporate Personal Representative to avoid any disharmony that may arise if you name one but not all of your children as Personal Representative.
- You control the disposition of your assets. If there is a relative whom you wish to disinherit you have the opportunity to do that.
- You have the opportunity to create a trust to hold the inheritance of a beneficiary that is a minor (minors cannot own assets) which can be distributed to the minor over a period of time to encourage maturity and fiscal responsibility.
- You have the opportunity to create a special needs trust to hold the inheritance of a beneficiary who has a disability or special needs so they can maintain their government benefits.
You have the opportunity to create a trust to hold the inheritance of a beneficiary that has an addiction or substance abuse challenge.
Summary Administration (Abbreviated Probate)
If a Florida resident dies owning probate assets valued under $75,000.00 (the value of the homestead is not included) then this shortened proceeding can be used. Generally, the process can be completed within four (4) weeks of the court papers being filed absent any unusual circumstances. If, however, the Last Will & Testament is missing a self-proof affidavit or, the oath of one of the witnesses must be taken or, a beneficiary cannot initially be located the process can take longer.
All beneficiaries must sign the Petition For Summary Administration or, anyone who has not signed it must be formally served. A Personal Representative is not appointed by the Court. An Order is signed identifying the assets and the percentage of the assets to be distributed to specified beneficiaries. The beneficiaries can then present the certified court order to the financial institutions to claim their inheritance.
Formal Administration (Full Probate)
If a Florida resident dies owning probate assets valued in excess of $75,000.00 then this type of probate proceeding is required to be used. A Personal Representative is appointed by the Court and has fiduciary duties and responsibilities to fulfill in administering the estate. These include:
- Locating beneficiaries
- Marshaling and valuing estate assets
- Preparing an estate inventory
- Determining what tax returns need to be filed for the decedent as well as for the estate
- Identifying known creditors
- Protecting assets and preventing diminishment in value
The law requires the Personal Representative to publish a notice in the local newspaper for two consecutive weeks notifying any potential creditors of the decedent that they have a limited period of time to file a claim in the Court.
Generally, this type of probate proceeding takes approximately 4-5 months barring any unusual circumstances such as contesting of the Last Will & Testament.
If a deceased non-Florida resident’s primary domicile was outside of Florida and he/she owned real estate or other tangible property in Florida, a Florida probate will be necessary. It is called an “ancillary probate”. Florida is considered to be the ancillary estate whereas the state of the decedent’s primary residence is considered the ‘domiciliary estate.’ When you meet with me, I will counsel you on which type of ancillary probate is appropriate and necessary to claim and distribute the Florida assets to the beneficiary.
When you meet with me for an informative probate consultation I will:
- review the decedent’s Last Will & Testament to determine whether it qualifies to be admitted to the Probate Court
- interpret the terms of the Last Will & Testament
- review the titling (i.e. ownership and beneficiaries) of the decedent’s assets in order to determine which assets go through the probate process,
- provide you with my recommendation as to which type of probate proceeding is required, and
- provide you with a written proposal for legal services.
I welcome the opportunity to work with you as the Personal Representative, navigating efficiently through the court process and helping you to fulfill the directives of the decedent.