If a loved one who lived in or owned property in Florida recently died, you likely have questions about the steps you need to take in order to settle the estate. The probate process is designed to “prove” the deceased person’s will, if they left a valid last will and testament. This is referred to as dying “testate.” If there was no will, “intestate” probate administration serves to ensure estate assets pass according to state law. Florida’s probate laws are codified in Chapters 731 to 735 of the Florida Statutes.
The probate process also involves the court appointing a personal representative (often referred to as the “executor”) and empowering that person or entity to take necessary actions to obtain, safeguard, manage, and distribute estate property.
Before exploring the specific steps involved in the probate process, it is important to understand that probate requirements do not apply to every asset the deceased person owned or had an interest in. Regardless whether your loved one’s estate is subject to formal or summary administration, there are certain assets that pass outside of probate. Those include:
- Jointly-held property. Assets owned as joint tenants with rights of survivorship or as tenants by the entirety pass to the other named owner(s) when one owner dies, outside of probate.
- Assets with beneficiaries. Life insurance, annuities, and retirement account assets with one or more named beneficiaries will pass directly to the beneficiaries outside of court. The same is true for bank accounts with POD (pay on death) designations and investment accounts with TOD (transfer on death) beneficiaries. One exception to this is when the designated beneficiary was the decedent’s “estate.” In that case, the property will be subject to probate.
- Trust property. Assets owned by (titled in the name of) a revocable or irrevocable trust are exempt from probate and will be administered and distributed per the terms of the trust instrument.
Types of Probate
There are different types of probate in Florida: “Formal administration” and “summary administration.”
Most large estates in Florida must be probated using formal administration. Formal administration means the court is involved and has oversight of the process, including appointment of a personal representative, administration of estate assets as described more fully below, and the ultimate disposition of estate property.
Summary administration, a simplified probate process, is available if the value of the deceased person’s probate estate is not greater than $75,000, or if the deceased person has been dead for more than two years and there was not previously a probate administration – regardless of the size of the estate being probated.
The steps outlined below apply to the formal probate process. Note that in some limited cases, neither formal nor summary administration is required and a deceased person’s probate estate can be administered using a process referred to as “Disposition of Personal Property Without Administration.” A discussion of this process is outside the scope of this blog post. Your probate attorney can help you determine whether the formal or summary administration process applies in your case or whether unsupervised administration is an option.
Step 1. Locate the decedent’s will and any codicils or separate writings.
The first step in probating an estate is to locate the original will, including any codicils (amendments) to it and separate writings referenced in the document(s). Florida statute 732.901 requires that the original will be deposited with the clerk of court within ten days of being notified that the testator, the person creating the will, has died.
If a will cannot be located in the decedent’s things but he or she had a safe deposit box, interested persons can file a petition asking the court for permission to open the safe deposit box to locate the will.
In situations where a will cannot be located, the decedent’s estate will pass according to the priority established in Chapter 732 of Florida statutes.
Step 2. File a petition for probate administration with the probate court in the county where the decedent lived or owned property.
Anyone with an interest in the estate can file a petition with the court to open a probate administration, whether or not the decedent left a will. The petition is most often filed by the personal representative (executor) named in the will, if applicable, but it can also be filed by a spouse, child, other heir, or even a creditor.
In addition to the petition, initial documentation filed with the court also includes a certified copy of the death certificate, an “acceptance,” and “oath” by the personal representative, and an order admitting the will to probate.
The probate court reviews the submitted petition, will, and other materials before issuing a court order to appoint the personal representative. Once appointed, the court issues a legal document called “letters of administration” giving the personal representative legal authority to act on behalf of, and to administer, the estate.
Step 3. The personal representative for the estate administers the estate according to Florida law.
Acting as personal representative for someone’s estate is a big responsibility – even if the estate seems relatively small or uncomplicated. The personal representative can be held personally liable for mismanaging the estate. After being appointed by the court, the Personal Representative’s duties include the following:
- Locate, inventory, and safeguard estate assets during administration. This includes ensuring that property insurance policies are maintained until the asset (home, car, etc.) is sold or distributed. The inventory must be filed with the clerk of courts.
- Obtain a tax ID number for the estate and open an estate bank account.
- Notify all known or reasonably ascertainable creditors of the estate administration, by publishing a “Notice to Creditors.” This notification starts the clock ticking for creditors to file claims with the clerk of courts for amounts owed by the decedent.
- Notify all interested parties of the administration using a “Notice of Administration” form. Some documents may require delivery signatures by heirs or other interested persons.
- Transfer assets from the decedent’s name into the name of the estate. This includes bank accounts, and may involve liquidating stocks or other investments held in the decedent’s name alone.
- Evaluate claims against the estate, objecting to claims believed to be invalid or improper. If the personal representative objects to a creditor’s claim, the creditor may choose to pursue a separate lawsuit to obtain the amount they believe they are owed.
- Pay legitimate creditors’ claims.
- Pay expenses associated with administering the estate, including legal and accounting fees, court filing costs, publication fees, as well as fees related to locating heirs or liquidating assets.
- File tax returns and pay taxes owed. This obligation includes the decedent’s individual tax obligations as well as estate income and/or gift tax returns, as well as Florida intangibles tax, if applicable.
- After paying valid creditors’ claims, taxes, and expenses of estate administration, the personal representative must distribute remaining estate assets to estate heirs
- File a final accounting, notifying the court that estate obligations have been met. The court officially discharges the estate at that point, concluding the probate process.
An Experienced Probate Attorney Can Make the Estate Administration Process Smoother
Navigating the Florida probate process can be difficult. That is especially true if the deceased person’s estate was large or complex, or if there are likely to be disputes about estate administration or distribution. When you hire a skilled, knowledgeable probate lawyer, you can be confident you have a legal professional in your corner who understands the process, requirements, and timelines, making an otherwise stressful process a little easier while you mourn the loss of your loved one.
Forefront Law in Jacksonville represents personal representatives in testate and intestate probate matters, providing legal advice and assistance when it is needed most. To learn more and to schedule an initial consultation, contact us today.