After a loved one dies, you may be wondering about probate. What is it? Do you need to do it? Who can help you? These common probate questions might leave you feeling overwhelmed during your time of grief.
We’ve compiled a list of common Florida probate questions and answers to help you understand the legal process ahead.
Florida Probate Common Questions
What Is Probate?
Probate is the formal, legal process of handling a person’s affairs and distributing their assets after death. This court-supervised proceeding involves:
- Proving the validity of a will, if one exists;
- Appointing a personal representative (or executor) for the estate;
- Identifying the decedent’s assets;
- Notifying creditors, heirs, and beneficiaries;
- Paying off the decedent’s debts; and
- Distributing property to the legal heirs and beneficiaries.
In Florida, there are different types of probate, ranging from formal proceedings to non-administrative processes. To know which type of probate the estate will need depends on the assets and their value. Our Jacksonville, FL probate lawyers can help determine what’s right for the estate.
Is Probate Required in Florida?
No. Not every estate must go through probate. Probate is only required if the decedent died owning assets titled solely in his or her name. These are known as probate assets.
Non-probate assets are assets that are jointly titled or have a designated beneficiary. For example, life insurance policies, real property titled as joint tenants with rights of survivorship, and payable on death (POD) accounts are all types of non-probate property that are not subject to probate.
If the Decedent Left a Will, Do You Have to Go through Probate?
Whether you have to probate the estate is based on the type of assets the estate contains—not on the existence of a will. A will simply provides instructions for the court on how to distribute the decedent’s assets.
If there is no will, the probate court allocates and distributes the estate according to Florida intestate succession law. Basically, this means that relatives who survive the decedent will inherit the estate. Spouses inherit first, then children, then the decedent’s parents. This line of succession continues until the estate is fully distributed.
Are There Ways to Avoid Probate?
The only way to avoid probate is with proper estate planning. If the decedent left assets in his or her name, then you likely cannot get around probate.
However, there are shortcuts. A formal probate proceeding isn’t necessary for every estate. In Florida, there are two alternative options for qualifying estates.
Florida offers a simplified process called summary administration in lieu of formal probate. To qualify, the estate’s value must be $75,000 or less, or the decedent must have died over two years ago.
Any beneficiary or person named as the personal representative in the decedent’s will can file a petition for summary administration.
Disposition without administration
Florida doesn’t require any type of administration or formal proceeding for small estates with certain property types. If the decedent left only the following types of property, then disposition without administration is appropriate:
- Exempt personal property (household furniture, furnishings, and fixtures);
- Personal property exempt from creditors; and
- Non-exempt personal property with a value less than the cost of funeral expenses and reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness.
You can complete this process without an attorney. Any interested party may provide a letter or affidavit to the probate court asking for disposition without administration. An interested party is any person or entity who has an economic interest in the estate.
What Does a Personal Representative Do?
A personal representative, or executor, acts on behalf of the estate and is in charge of managing and protecting it. While the probate court controls the estate’s distribution, the personal representative is responsible for carrying out the court’s orders and Florida law. Here are some tasks that a personal representative typically does:
- File a petition to open the estate;
- Locate all of the decedent’s assets;
- Prepare an inventory of the decedent’s property;
- Notify creditors, potential creditors, heirs, and beneficiaries of the decedent’s death;
- Pay estate expenses;
- Validate claims made against the estate (debts and taxes);
- Prepare and file final tax returns;
- Represent the estate in any litigation; and
- Distribute assets to heirs and beneficiaries.
A personal representative can be either a person or entity and must meet all of Florida’s requirements.
How Long Does Probate Take?
The time it takes to complete probate depends on the estate. Estates with hard-to-value assets or large tax implications will take longer than those with only a vehicle or bank account. Creditors and beneficiaries also need time to file any claims against the estate. If an interested party files a lawsuit against the estate, this will prolong the probate timeline. For many estates, however, probate only takes a few months.
How Expensive Is Probate?
The cost of probate depends on how difficult it is to administer the estate. For example, probate will be expensive and lengthy if the estate owns real estate that’s difficult to sell or if the estate is involved in litigation.
Do You Need a Lawyer for Probate?
Rule 5.030 of the Florida Probate Rules requires every personal representative to be represented by an attorney in Florida unless the personal representative is the sole interested person in the estate.
We Can Help You with Probate in Florida
At Beller & Bustamante, P.L., we understand how complicated the Florida probate process can be. That’s why we’re here to answer your common probate questions, so you feel confident going forward. With over 40 years of combined experience, our Jacksonville, FL probate attorneys have in-depth knowledge of Florida’s probate laws and the probate court system. We focus on educating our clients by answering questions, explaining the process, and preparing them for what’s ahead.
To speak with one of our lawyers, call Beller & Bustamante, P.L., or go online to schedule a consultation.