Probate

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. 

Every probate estate is unique, but most involve the following steps:

• Filing of a petition with the proper probate court.
• Notice to heirs under the Will or to statutory heirs (if no Will exists).
• Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
• Inventory and appraisal of estate assets by Executor/Administrator.
• Payment of estate debt to rightful creditors.
• Sale of estate assets. 
• Payment of estate taxes, if applicable.
• Final distribution of assets to heirs.

FREQUENTLY ASKED QUESTIONS

Are there different kinds of probate administration?

Yes.

A probate action is necessary whenever a deceased person leaves titled assets in his/her name alone, a petition for probate may be filed that allows distribution of the decedent's assets. The Court oversees the estate to make sure debts are paid and proper distribution is made. The different case types are listed below and may require you to contact an attorney to discuss your situation and what type of action should be filed, if necessary.

Every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in the State of Florida, pursuant to Florida Probate Rule 5.030.

Wills may be placed on deposit after a person has died. In the State of Florida wills are not placed on deposit prior to a person’s death .

Estate Case Types

• Production of Wills - F.S. 732.901 The will of the decedent must be deposited by the custodian with the Clerk & Comptroller's Office in the county where the decedent resided within ten days after receiving information of the death of the maker of the will. The custodian must provide the decedent's date of death or social security number to the Clerk& Comptroller when depositing the will. There is no fee to deposit the will with the Clerk & Comptroller's Office.

• Disposition of Personal Property without Administration - F.S. 735.301;Rule 5.420
  Disposition of Personal Property without Administration a/k/a Small Estate proceeding may be filed without the assistance of an attorney. The Clerk & Comptroller can assist you with the filing of an Application for Disposition of Personal Property without Administration. To qualify for a small estate the decedent's assets must be in the form of:
  • Personal property exempt under the provisions of Florida Statute 732.402
  • Personal property exempt from the claims of creditors under the Constitution of Florida
  • Nonexempt 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

• Formal Administration - F.S. 733 In a Formal Administration the court appoints a personal representative to be in charge of the estate and issues Letters of Administration, giving authority to the personal representative to act. This kind of administration is frequently advantageous as the Personal Representative can eliminate creditors with certainty.

• Summary Administration - F.S. 735 This type of administration is a probate proceeding when the value of the entire estate, less the value of property exempt from claims does not exceed $75,000 or the decedent has been dead for more than two years and the decent's will, if any, does not direct a formal administration.

• Petition to Admit Foreign Will - F.S. 734 The purpose of this petition is to transfer title of real property in this state of a nonresident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting the will to probate. This petition may only be filed if the decedent has been dead for more than two (2) years.

• Ancillary Administration - F.S. 734 Ancillary Administrations are used when it is necessary to appoint a personal representative to act on behalf of the estate when the decedent is a nonresident because his/her assets are titled in their name alone. The petition must be accompanied by authenticated copies of the probate proceedings from the state the decedent was a resident of or if no estate was required an authenticated copy of the will, or if no will, then the non-resident petition must state that there are no proceedings in another state or country. The authority is given to the personal representative by the Court at the time of the appointment and when Letters of Administration are issued to the representative so that he/she may complete the administration of the estate.

• Caveat - F.S. 731 A caveat may be filed with the Clerk & Comptroller by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice.

• Curatorship - F.S. 733 Curatorships are filed when the Court needs to appoint a Curator and issue Letters of Curatorship to take charge of the estate of a decedent until a Personal Representative is appointed.

What happens if someone objects to the Will?

In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

Certain types of assets are what is called “non-probate assets” do not go through probate.  These include:

• Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
• Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
• Life insurance policies.
• Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
• Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate.  In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

How much does probate cost?  How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds.  Some of these expenses may be necessary even if there is no probate estate. These typically add up to 2% to 7% of the total estate value,  depending on whether there is any estate tax due, and whether there is any litigation. These factors also affect the length of time an estate will be in probate. Most formal administration probates take from 7 to 18 months, assuming there is no litigation involved or complications with filing tax returns.