PROBATING A FLORIDA ESTATE
Upon a person’s death, a Florida probate case can be filed to settle the person’s estate. This first involves locating the person’s Last Will and Testament — if there is one — and a death certificate. Most people then choose to retain a probate attorney to administer the estate. The attorney can represent the personal representative throughout the probate process, from filing the case to final discharge.Read on to learn more about Florida probate, and contact the Wheeler Firm to schedule a consultation with an experienced estate planning attorney.
What Is Probate?
Probate is the legal process to distribute a deceased person’s estate to such person’s heirs and designated beneficiaries, and to pay off any debt owed to the deceased person’s creditors at the time of their death. A probate estate includes the decedent’s personal property and Florida real property owned by the decedent, except homestead property. However, note that real property owned by the decedent is not deemed exempt from probate until the probate court enters an order determining that the property is indeed homestead property.
Various assets can pass outside of probate. This can include life insurance proceeds, jointly owned property or accounts, and property held by a husband and wife. Also, assets held in trust at the time of death will normally pass outside of probate. However, the trust assets may be used to satisfy the expenses of estate administration and the claims of creditors if the probate property is insufficient.
PROBATE PROCEEDINGS ARE REQUIRED TO ADMINISTER AN ESTATE
Various factors will determine the particular method of probating a person’s estate. The first consideration should be whether the deceased had a Last Will and Testament.
- Testate Estates. If a person dies leaving a Last Will and Testament, he or she is said to have died “testate.” In the case of a person who dies having executed a will, a court proceeding is initiated and the first order of business is to prove that the decedent’s will was validly executed, per Florida law. Then, an appropriate person (who usually is named in the will) is appointed by the Court to serve as the “personal representative” to administer the estate. The personal representative is responsible for assuming control over all of the property owned by the decedent for the purpose of administering the estate per the terms of the Last Will and Testament. The intent of the decedent, as reflected in the will, should be the guiding principle for the administration.
- Intestate Estates. If a person dies without a will, he or she is said to have died “intestate.” When a person dies intestate, a petition for administration of the estate is filed, and the probate court appoints a qualified person to serve as the “personal representative” to administer the estate. The preferences of appointment of the personal representative, per Florida statutes, is: The surviving spouse, and if none, the person selected by a majority in interest of the heirs, and if none, the heir nearest in degree (the closest relative). If more than one person applies, the court may select the one best qualified.
TYPES OF PROBATE ADMINISTRATION
After making a determination of whether the case should be filed as a testate or intestate administration, you must decide what type of administration to pursue, if administration will be required at all. There are four types of probate administration in Florida:
Formal Administration.:
This is the normal method of administering a Florida probate estate. With a formal administration, a personal representative will be appointed, and publication will be required to apprise any unknown creditors that the estate has been opened. While publication is pending, an inventory will be filed, debts will be satisfied and assets distributed. When that process is completed, the personal representative may petition for discharge.
Summary Administration.:
This is a simplified method of probate administration that is only available if certain criteria are met. Specifically, that the value of the entire estate subject to administration, less the value of exempt property exempt, does not exceed $75,000 or that the decedent has been dead for more than 2 years. These cases can be far more efficient and desirable since publication is not required and no personal representative is needed. However, beneficiaries of the estate can remain liable to potential creditors after the case is closed.
Ancillary Administration.:
Often, a decedent dies in another state and owns property in Florida. Where this occurs, the foreign state will not have jurisdiction to transfer the Florida property. Therefore, a qualified person may petition for the opening of a Florida ancillary administration to transfer the property to heirs and beneficiaries (the Florida case is thereby “ancillary” to the main probate proceeding in another state).
Disposition of Personal Property without Administration.:
No probate administration is required if the decedent left only personal property, the value of which “does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.” If this criteria is met, an application may be submitted to the court to transfer the personal property without administration.
The type of probate needed will vary from case to case, depending on the facts and circumstances.
CONCLUDING THE FLORIDA PROBATE ESTATE
Throughout the probate case, the personal representative will marshal the probate assets and liabilities, settle the estate liabilities and distribute the assets as directed in the will. If there is no will, the personal representative will settle the estate as required by the Florida intestate statutes. Once that process is complete, the probate attorney will file a Petition for Discharge and ask the probate court to discharge the personal representative from further responsibilities.
SCHEDULE AN APPOINTMENT WITH A PROBATE ATTORNEY
The Wheeler Firm can guide you and your family through Florida probate in your time of need. We want to make sure you understand the probate process as the estate is administered per Florida law, and can complete the case in a timely manner.
Call The Wheeler Firm at (850) 613-6923 to schedule a consultation, or submit an online inquiry and a member of our team will contact you to arrange your consultation.