What is Probate?
Probate is a legal process that takes place after someone dies. It includes:
- proving in court that a deceased person's will is valid (usually a routine matter)
- identifying and inventorying the deceased person's property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there's no will) directs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.
Assets That Don’t Go Through Probate
Many assets of the deceased person may be able to go to their new owner without probate court approval. The most common kinds of non-probate property are:
• Property held in joint tenancy by more than one person—for example, a house owned by a couple, or a bank account shared by more than one person
• Assets for which the person designated a beneficiary—for example, a POD bank account, a retirement account, or life insurance proceeds
• Assets held in a living trust
No Probate (Disposition Without Administration)
When the deceased person leaves very little behind, this process lets someone who paid for the person’s final expenses—the funeral and expenses of the last illness—be reimbursed from the assets of the estate. (Fla. Stat. 735.301.)
It can be used only when:
The deceased person did not leave any real estate, and the only assets are either exempt from creditors’ claims or don’t exceed the amount of final expenses. To request reimbursement, you file a form called “Disposition of Personal Property without Administration,” which is available from the clerk of the court and on many Florida circuit courts’ websites. There’s a small filing fee; call ahead or check the court’s website to find out the exact cost.
The document must state how much you’ve spent, and you must document those expenses by submitting itemized bills and receipts for funeral bills and for medical expenses that were incurred during the last 60 days of the deceased person’s life. You must also state exactly which assets (a bank account, for example) you are requesting payment from. A certified copy of the death certificate must accompany the request. If there’s a will, it must also be filed with the local circuit court.
This probate shortcut can be used by many Florida estates. It is an option if either:
- the death occurred more than two years ago, OR
- the value of the probate estate—that’s all the property that would have to go through probate, so it excludes the non-probate assets described above—is not more than $75,000.
To start this process, the person who was nominated in the will to be executor, or anyone who inherits property, files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition. If any beneficiary doesn’t sign the petition, you must formally deliver (serve) that person with notice that you have filed the petition. (Fla. Stat. 735.201.)
In the petition, you state that the estate qualifies for summary administration, list the deceased person’s assets and their value, and state who inherits which assets.
The court doesn’t appoint a personal representative (executor or administrator) for the estate. Instead, the court, if it determines that the estate qualifies for summary administration, issues an order, releasing the property to the people who inherit it. You might use this court order to show a bank, for example, that you are the rightful inheritor of the funds in an account it holds.
If the estate doesn’t qualify for a simpler method of administration, formal probate may be necessary. These proceedings begin when the executor nominated in the will, or another interested party, asks the circuit court to be appointed as personal representative of the estate. Generally, the probate proceeding takes place in the county where the deceased person was living at the time of death Beneficiaries and heirs (people who would inherit in the absence of a valid will) are given notice, so they have a chance to object.
The court issues a document called Letters of Administration, which gives the personal representative authority to settle the estate. If there’s a will, it must be filed with the court and proven valid. This may be done by having the witnesses to the will give statements, under oath, about its validity. Or, if the will is “self-proving,” it’s enough to submit the document itself. Under Florida law, a will is self-proving if the witnesses, when they watched the will-maker sign the will, signed a statement in front of a notary public. (Fla. Stat. Ann. § 733.201.)
Under the court’s supervision, the personal representative gathers and inventories assets, pays debts and taxes, and (eventually) distributes what’s left to the people who inherit it. The personal representative must submit a final accounting to the court, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. Anyone who objects to the accounting can object in court.
After everything has been distributed, the personal representative files evidence (receipts) with the court, and asks that the estate be closed. The court issues an order closing the estate and relieving the personal representative of further responsibilities. Typically, the whole process takes six months to a year.
Why is Probate Necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had 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 is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
What Happens if There is No Will?
If someone dies without a valid will, he or she is “intestate.” Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.
If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:
- If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.
- If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
- If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.
- If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.
- If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters.
- Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.
The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws.
For example, if the decedent’s homestead property was titled in the decedent's name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies.
The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.
Who is Involved in the Probate Process?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:
- Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.
- Circuit court judge.
- Personal representative (or executor).
- Attorney providing legal advice to the personal representative throughout the probate process.
- Those filing claims in the probate proceeding relative to debts incurred by the decedent during his or her lifetime, such as credit card issuers and health care providers.
- Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and sometimes as to federal gift, estate or generation-skipping transfer tax matters.
What is a Personal Representative, And What Does The Personal Representative Do?
The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term "personal representative" is used instead of such terms as "executor, executrix, administrator and administratrix."
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
- Identify, gather, value, and safeguard the decedent’s probate assets.
- Publish a "Notice to Creditors" in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
- Serve a "Notice of Administration" to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisors.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
Why Does the Personal Representative Need an Attorney?
A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on the rights and duties under the law, and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.
There are so many options available to an individual under Florida law. Here is a list of some documents that can be incorporated into your estate plan.
An estate plan may include the use of some of the following documents;
- Revocable Living Trust and Pour Over Will
- Durable Power of Attorney
- Designation of Health Care Surrogate with HIPPA Provisions
- Living Will
- Pre-Need Guardianship Designation
- Irrevocable Life Insurance Trust (ILIT)
- Qualified Personal Residence Trust (QPRT)
- Family Limited Liability Partnerships and Limited Liability Companies (FLP and LLC)
- Grantor Retained Annuity Trust (GRAT)
- Intentionally Defective Grantor Trust (IDGT)
- Charitable Remainder Trust (CRT)
- Charitable Lead Trust (CLT)
- Qualified Domestic Trust (QDOT)
- First Party Special Needs Trusts and Third Party Special Needs Trusts (SNTs)
- “Pet” Trusts
The probate process can become very complex and it is important to know what each party’s legal rights are.