Probate

Probate Attorney

Probate is one of those legal procedures that just about everyone undergoes at some point in their lives. The process can get surprisingly complex if estate finances are complicated, or if a large amount of assets must be distributed.

Assets That Don’t Go Through Probate

Not all assets need to go through probate to be distributed — title to certain kinds of property can pass automatically. Some examples follow:

• Assets held in joint tenancy or tenancy by the entirety. When one tenant dies, the property automatically passes to the surviving tenant.
• Assets held in a living trust.
• Assets for which there is a named beneficiary, such as a life insurance policy,  assets held by an IRA or a 401(k), securities held in a transfer-on-death account, funds in payable-on-death bank accounts, etc.

Summary Probate Administration

Summary probate administration applies if:

• The estate includes no real estate, and all property is exempt from creditors’ claims except for funeral expenses and expenses for the last two months of the deceased’s last illness; or
• The deceased has been dead for more than two years, or (if estate assets don’t exceed $75,000 above the amount subject to creditor claims.

If either of these two circumstances apply, then the estate will qualify for Summary Probate Administration. Summary Probate Administration is a significantly shorter process than Formal Probate Administration.

Formal Probate Administration

Most estates with significant assets are subject to formal probate administration.  The formal probate process works like this if all goes smoothly:

• The deceased’s last will and testament is filed with the probate court, if one exists. Probate can proceed even if no will is in existence.
• The personal representative nominated in the deceased’s will, petitions the probate court sitting in the county where the deceased died to be appointed the personal representative of the estate.
• The court formally appoints the personal representative.
• The court notifies two groups of people of the upcoming probate proceedings  (i) people who are named as beneficiaries under the will and (ii) people who stand to inherit if the will is declared invalid.
• The court issues the personal representative Letters of Administration, which give the personal representative the authority to represent the estate in dealings on behalf of the estate.
• The personal representative inventories estate assets, collects its debts and pays its creditors.
• Personal representative submits a final accounting of the estate to the court; this document summarizes the his or her actions and includes a plan for distributing estate assets.
• Interested parties are notified of the asset distribution plan, and anyone who has an objection can file it with the probate court.
• If there are no objections (or after they have been resolved), the personal representative distributes all estate assets that remain after estate creditors have been satisfied.
• The personal representative submits evidence of the estate administration to the probate court and asks the court to close probate.
• The probate court issues an order closing probate.

Intestate Succession

Intestate succession is a statutory distribution plan that applies when the deceased leaves no valid will. In that case, the Florida intestate succession statute functions as a “will” that distributes estate assets to children, parents, or other close relatives according to certain rules of priority. If the deceased dies with a spouse but no descendants, for example, the spouse inherits everything. Other outcomes are possible depending on who survives the deceased.

Frequently Asked Probate Questions (FAQs)

Is a lawyer required for probate?

Probably. Under Florida law, a probate lawyer is required unless (i) the estate includes no real estate; and all property is exempt from creditors’ claims except for funeral expenses and expenses for the last two months of the deceased’s last illness; or if the personal representative is the sole beneficiary of the estate. In any case, retaining a lawyer is a good idea, since the process can get complex even for a small estate.

How Long Does Probate Take?

Summary probate administration may be completed in a month or two. Formal probate, however, takes anywhere from six months to a year; even more time might be required if a dispute erupts. As always, the length of time required depends to a great extent on the details of the case.

What’s the difference between an executor and a personal representative?

An “executor” and a “personal representative” are two different names for the same position. Although Florida typically uses the term “personal representative”, the two terms are essentially interchangeable.

Who can serve as a personal representative?

To serve as personal representative of a Florida estate you must be:

• Over 18 years of age;
• Either a Florida resident or a relative of the deceased;
• Mentally and physically able to perform the duties of a personal representative; and
• Never convicted of a felony.

Can a spouse be cut out of a will?

No, not unless the spouse signed a prenuptial agreement with the deceased that provides for this outcome. Otherwise, the surviving spouse is entitled to thirty percent of the “elective estate”, even if the will left a smaller amount or even if it purported to cut the spouse out of the estate entirely.

Do I need to appear in court?

Almost certainly not. Florida law generally does not require the heirs, the beneficiaries, the personal representative or even the lawyer to appear in court — it is all handled by mail, email, telephone and fax. Even if the estate is contested, your lawyer may be able to appear in court for you with no need for your personal attendance.