Q: What is Probate?
A: When a loved one passes away leaving assets in his or her individual name, those assets are often required to go through a court-managed process known as “probate” or “probate estate administration”. This process involves the managing and distribution of the decedent’s assets to the beneficiaries of the estate. The length of time for a probate to be completed in Florida depends on the complexity and the size of the estate, as well as the rules and location of the probate court that is handling the case.
When it comes to probate, every estate is unique. However, most probates in Florida involve the following steps:
- Filing of a petition for administration with the probate court;
- Notifying the heirs named in the decedent’s Will or the statutory heirs (if no Will exists);
- Filing a petition to appoint an executor or administrator for the estate (also called the personal representative);
- Preparing an inventory (i.e., list) of the estate’s assets;
- Paying off any required estate debts;
- Selling estate assets (if applicable);
- Paying estate taxes (if applicable); and
- Distributing the estate assets to the beneficiaries.
If the shortened form of probate (called a “Summary Administration”) can be utilized instead of a Formal Probate Administration, some of the above steps – such as appointing an executor – are not even necessary. This often saves the heirs both time and money.
Q: How Can an Estate Qualify for the Shortened Form of Probate in Florida?
A: Summary Administration is a shortened form of probate, as compared to Formal Administration, which generally requires more time, paperwork, and costs. However, Summary Administration is only available in two circumstances:
1) The deceased passed away two or more years prior to the start of probate estate proceedings;
2) The value of the deceased’s probate estate, minus any property exempt from creditor claims, is $75,000 or less. Homestead property (i.e., your primary residence), is considered exempt so your primary residence can be of any value and as long as the rest of your probate assets do not exceed $75,000, your estate will likely qualify for Summary Administration.
Moreover, if the estate meets either of the above criteria but is intestate (meaning the decedent did not leave a Last Will and Testament), then the probate estate administration is carried out per Florida’s intestacy probate rules.
Q: Can I Avoid Probate?
A: If one of your loved ones passes away owning his or her assets through a properly drafted and funded Living Trust, no court-supervised administration of the estate may be necessary. However, the successor trustee needs to administer the distribution of the decedent’s estate.
Real property can also avoid going through the probate process if the title of the property is transferred to a Life Estate Deed. A popular type of Life Estate Deed is the Lady Bird Deed (also known as Enhanced Life Estate Deed). This type of deed gives the life estate holder full rights of ownership and control over the property while they are still living, while also providing their heirs with the added benefit of probate avoidance.
Joint tenant with rights of survivorship deeds also avoid probate. This type of deed involves multiple owners who have a “right of survivorship”, meaning that if one person on title passes away, the other individuals(s) that remain on title would obtain the deceased’s persons ownership rights without the need for probate.
For retirement and bank accounts, adding a payable on death beneficiary often results in probate being avoided.
Q: What Happens if There is an Objection to the Will?
A: An objection to a Last Will & Testament, known as a “Will contest,” is not a common occurrence during probate proceedings, and can be costly to litigate.
In order to contest a Will, an individual needs to have legal “standing” to raise objections. This typically occurs when, for example, a decedent’s children are to receive disproportionate shares of the estate in accordance with the Will, or when distribution schemes change after a Will is modified. Will contests may target the person designated to serve as executor (or personal representative of the estate). There should be a strong showing of undue influence, Will irregularities, or lack of capacity before a Will contest is initiated.
Q: Will Probate Administer All of the Decedent’s Property?
A: Probate is a court-supervised process through which title is transferred from the decedent’s name to the names of their heirs. However, not all assets are required to be distributed through probate. Certain types of assets, known as “non-probate assets,” will not have to go through probate and can be directly distributed to the beneficiaries. These non-probate assets include:
- Property that is owned as “joint tenants with right of survivorship.” Such property passes to the co-owners upon the decedent’s death by operation of law and probate is not required.
- Life Estate Deeds (including Lady Birds Deeds).
- Retirement accounts, such as IRA and 401(k) accounts, so long as there are designated beneficiaries.
- Bank accounts with “pay on death” or “in trust for” designations.
- Joint bank accounts.
- Life insurance policies with payable on death beneficiaries named.
- Property owned by a Living Trust.
Q: Are Executors (i.e., Personal Representatives) Paid for Their Services?
A: Generally, executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of managing and distributing the decedent’s estate to the beneficiaries. Additionally, executors may be entitled to statutory fees, or any fees set forth in the deceased’s Will.
Q: How Much Does Probate Cost and How Long Will It Take?
A: The duration and cost of probate in Florida can vary substantially depending on several factors, including the complexity and value of the decedent’s estate, whether the decedent left a valid Will, and the location of real property owned by the estate. Additionally, Will contest or disputes with alleged creditors over debts owed by the decedent’s estate can result in the probate being more time consuming and costly.
The type of probate is also an important factor – Summary Administrations are often much shorter in length and less expensive than Formal Administrations.
The expenses of an estate going through Florida Probate may include attorney fees, court fees, executor fees, accounting fees, and appraisal costs, among others. For the shortened form of probate – a Summary Administration – attorneys often charge a flat fee. Formal Administration fees may be based on the value of the estate assets.
Assuming there is no litigation involved and everything goes smoothly, a typical Summary Administration takes around 1.5 to 4 months to complete. A Formal Probate Administration often takes at least 6 months to complete, though there is a process for selling real property during the probate so that property can be sold more quickly if needed.
Get in Touch with Probate Experts!
Although probate administration is often a necessary step in the distribution of assets after the death of a loved one, it can also be a complex process. In order to efficiently navigate Florida probate, including the process of selling real property during a probate, working with an experienced Florida probate and real estate attorney is key.
At Farshchian Law, our team of probate experts has successfully handled hundreds of Florida probate cases over the years, and we can also help you to successfully navigate the Florida probate process. To schedule a free consultation or learn more about our probate services, call us at (800) 604-1871, or email us at our secure online contact form. We handle probate, real estate, and estate planning matters throughout the State of Florida.