To some people, the very term “probate” may invoke fear about a bureaucratic and costly process involving a deceased individual’s estate. But those with the facts – and a qualified Probate Lawyer by their side – will find that Florida probate law is nothing to be feared or dreaded.
What is Probate?
Broadly defined, probate is a court-supervised legal process that administers your estate after your death and distributes your assets to the beneficiaries specified in your Last Will & Testament. In the absence of a Will, the probate court will designate someone, usually next of kin, to serve as the personal representative (i.e., the executor) of the estate.
The personal representative will work with the probate attorney to manage the estate, including identifying heirs and creditors, getting the Will admitted to probate, and handling any valid creditor claims.
Probate laws vary greatly by state. Florida requires probate in one of two situations: if the decedent was a Florida resident with assets in Florida, or if the decedent was a non-Florida resident with assets in the State upon death. In either instance, probate typically only involves only assets owned solely by the deceased at the time of his or her death.
Assets owned by one or more individuals may avoid being distributed via probate if there is a mechanism for automatic succession, such as a jointly-owned bank account, or real estate owned jointly with the right of survivorship. Similarly, assets with a designated beneficiary, such as a life insurance policy or a retirement plan, will typically not be subject to probate. Property held as a life estate also avoids probate.
Types of Florida Probate
1) Formal Administration
A formal probate administration is the longer and more involved form of probate in Florida – it typically takes between six months to a year to complete (or possibly longer if there are a lot of heirs or assets, if there is an estate tax return to be filed, or if there is a dispute amongst the heirs). If the deceased left a Last Will & Testament, it first has to be filed with the court and admitted as valid by the probate court. Either the personal representative (i.e., executor) designated by the Will – or an individual issued Letters of Administration to oversee the estate as a personal representative – is tasked with gathering and accounting for all the decedent’s assets. If there is no Will or the Will is declared invalid, the probate will still proceed as an “intestate” estate (i.e., an estate without a valid will).
The personal representative must also arrange for any taxes or debts to be paid. A “final accounting” of the estate is usually filed with the probate court, showing the estate’s contents and assets and how the remaining assets (after payment to creditors and tax collectors) will be distributed to heirs and beneficiaries. During this time, anyone who disagrees with the final accounting or plan of distribution can file an objection. Otherwise, once all of the assets have been distributed and all debts and taxes are paid, the personal representative must file receipts and records with the Court proving that everything is clear and formally requesting that a court order be issued declaring the representative’s duties fulfilled and the probate completed.
2) Summary Administration
As the name suggests, Summary Administration is typically the faster and simpler approach to administering and closing an estate. It applies only in two circumstances: when the decedent’s probate assets are less than $75,000 (not to include exempt assets) or if the decedent passed away more than two years prior to the start of summary administration. The Will’s executor (or if there is no will, the petitioner) can file a “Petition for Summary Administration” that lists all the assets and their values and establishes how they will be distributed. There is no need to appoint a personal representative, so in the absence of a Will, the court will release property directly to the legally recognized heirs.
3) Ancillary Administration
An Ancillary Probate Administration applies to the second situation stated earlier: a non-Florida resident leaving behind assets in the State. It is not a separate type of probate but a separate category that falls under a Formal Administration or as a Summary Administration. For an Ancillary Formal Administration, the court will issue “Ancillary Letters” that work similar to Letters of Administration, in that the court appoints an individual to serve as personal representative with the authority to administer the estate. Once an individual is deemed qualified to act as personal representative, the probate process proceeds as usual except that if there was another probate for the deceased in their resident state or country, documents from that probate may have to be filed in the Florida probate as well.
An Ancillary Summary Administration does not require the appointment of a personal representative and is therefore often quicker to complete. The estate must still qualify for the test stated above for summary administrations before an Ancillary Summary Administration can be filed.
How Farshchian Law Can Help
Whether you need to plan your estate to ensure that probate is avoided, or you’re the personal representative or beneficiary of an estate, you’re best served by turning to an experienced and qualified probate attorney. Farshchian Law has proven expertise in estate planning, drafting effective wills and trusts, and assisting personal representatives and heirs through the probate process. Our attorneys will be with you every step of the way to ensure that the process is handled smoothly and efficiently.
To learn more about our probate and estate planning services, call us at (800) 604-1871, or email us at Probate@JFRealEstateLaw.com. We handle probate, real estate, and estate planning matters throughout the State of Florida.