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What is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries.

Probate administration only applies to probate assets.  Probate assets are those assets that the decedent owned in his or her name sole name at death.

For example:
-A bank account in the sole name of a decedent is a probate asset.  A bank account owned by a decedent that is payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
-A life insurance policy, annuity or retirement account that is payable to a specific beneficiary is not a probate asset.
-Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset.  Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights or survivorship is not a probate asset.
-Property owned by a married couple as tenants by the entirety is not a probate asset on the death of the first spouse to die.

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, it must be admitted to probate in court to be effective to pass ownership.  If the decedent left no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

 Probate Process

The decedent’s will, if any, and certain other documents required to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county where the decedent lived at the time of his or her death.  A filing fee must be paid to the clerk.

The circuit court judge will rule on the validity of the decedent’s will.  If the decedent died without a will (intestate), the judge will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate assets.

If the decedent had a will that nominated a Personal Representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated Personal Representative meets the statutory qualifications, the judge will issue “Letters of Administration”.  These “Letters” are evidence of the Personal Representative’s authority to administer the probate estate.

What are the estate’s obligations to estate creditors?

One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion.  The Personal Representative must use diligent efforts to give actual notice of the probate proceeding to “known and reasonably ascertainable” creditors.  This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any.  Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court.  The Personal Representative, or any other interested persons, may file an objection to the statement of claim.  If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim.

What are the rights of the decedent’s surviving family?

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing.

For example, a surviving spouse may have rights in the decedent’s homestead real property.  A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate.  The elective share is, generally speaking, 30% of all of the decedent’s assets, including any assets that are non-probate assets.  A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets.

If the decedent married or had children after the date of the decedent’s will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

 How long does probate take?

It depends on the facts of each situation.  For example, the Personal Representative may need to sell real estate prior to settling the estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will.  Any of these circumstances would tend to lengthen the process of administration.  Even the simplest of probate estates must be open for at least the three-month creditor claim period.  It is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within twelve months after the court issues Letters of Administration to the Personal Representative.  This period can be extended if necessary.

 What alternatives to Formal Administration are available?

Florida law provides for several alternate abbreviated probate procedures other than the Formal Administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property which exempt from the claims of creditors such as homestead real property) is not more than $75,000, if the decedent’s debts are paid or the creditors do not object.  Those who receive estate assets in a Summary Administration generally remain liable for claims against the decedent for two years after the date of death. Summary Administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Another alternative to the Formal Administration process is “Disposition Without Administration”.  This is available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of 1 ) up to $6,000 in funeral expenses; and 2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.