Probate FAQ

Probate FAQ

1. Do I need an attorney for Florida probate?

Generally, an attorney will be required in almost all probate matters. Fla. Prob. R. 5.030 (a). The exceptions to this rule are for a "Disposition of Personal Property Without Administration” (which refers to a very small estate) and those estates in which the personal representative is the sole interested person. Even when an attorney is not required to assist with the probate process, there are many reasons on why one should retain an attorney. The probate process is extremely technical and missing documentation/pleadings can create unnecessary delays for the non-lawyer. Further, courts are not able to provide legal assistance to those who attempt to tackle the probate process on their own.

2. What is a Will?

A Will is a legal document that outlines how you wish for your assets to be distributed upon your death. A Will also appoints a Personal Representative (you may have also heard the term “executor”) as the responsible party to make sure the Will’s terms are followed, upon death. For the Will to be valid, Florida law has strict requirements that must be followed. We highly recommend that you contact an attorney if you wish to properly execute a Will in conformity with Florida Statutes.

3. Do I have to go through the probate process if I have a Will?

Probate administration only applies to assets which are left in the decedent’s sole name at the time of death or assets which designate the estate as a beneficiary. For example, if the decedent owned a bank account in his or her sole name, the asset would need to be administered pursuant to a probate proceeding. However, if the decedent owned a bank account with another owner, then the surviving owner would become the owner of the account. Keep in mind that being listed as a Power of Attorney on the account or a signer is not sufficient to establish joint ownership. Therefore, if the decedent had a bank account and a signer was also listed, the asset would still need to go through the probate process.

4. Do all estates in Florida have to go through formal administration?

No. Small estates without real property may qualify for "Disposition of Personal Property Without Administration” while other estates may qualify for summary administration. Disposition of Personal Property Without Administration is for small estates and is governed by Fla.Stat. 735.301(1). Summary administration is for estates larger than those who qualify for Disposition of Personal Property Without Administration, and which still provides for a more time-efficient and cheaper route compared to a formal administration. In order to qualify for summary administration, the value of the entire estate cannot exceed $75,000 and/or the decedent has been deceased for more than two (2) years.

5. Do I need to appear in a Florida court to probate an estate?

No, it is usually not necessary for a beneficiary or personal representative to appear in Court. However, if a dispute occurs and a hearing is required, a personal representative may be required to attend a hearing, along with their attorney. Most, if not all of the probate proceeding is done through e-filing, mail, and/or e-mail.

6. What assets avoid probate administration?

- Assets owned by the decedent who list a joint owner or beneficiary (either payable on death a/k/a POD accounts, or accounts held “in trust for” the benefit of another).

- Life insurance, retirement accounts, and/or annuities who list a named surviving beneficiary. Recall that if the “estate” is listed as the beneficiary, a probate will be required.

- Real and personal property owned with a joint tenant pass to the surviving co-owners.

- Assets held by a Living Trust Agreement

It is important to note that because the aforementioned assets avoid probate, one must be diligent in changing beneficiaries if and when their life situation changes (divorce, death, etc.) The beneficiary designations control, even if you have a Will stating otherwise.

7. How is the will probated?

The individual appointed as the Personal Representative retains a probate attorney who prepares a Petition to open the estate, along with various other documentation. The original Will, as well as a death certificate are also delivered to the Court for their possession. After the estate is opened, a Notice to Creditors is published and sent to known creditors. The Notice to Creditors is published for three (3) consecutive months and during this time, creditors have to file a claim against the estate. Creditors range from hospitals to credit card companies who have outstanding balances. The personal representative must identify and collect assets and in doing so, make sure that assets are maintained in good condition. Once the creditor period has run and all assets have been collected, the personal representative will start to distribute assets to the beneficiaries. A detailed accounting is filed with the court which includes, but is not limited to, outlining the assets and proposed plan for the distribution of same. Once the Court approves the disposition, the personal representative then starts to distribute assets as outlined in the Will.

8. Do beneficiaries have to pay creditors if the estate does is insolvent?

Generally, no. Unless the deceased engaged in fraudulent transactions in order to defraud a known creditor, or a beneficiary consented to being a personal guarantor of the decedent, a beneficiary should not have any liability to a creditor of the deceased.

9. Who receives assets if there is no Will?

If a decedent passes without a Will, Florida law provides for who is entitled to receive from an estate. First, a surviving spouse will inherit the entire probate estate if the decedent is not survived by any descendants (i.e. children) or the decedent and the surviving spouse are survived by their descendants (all of whom are descendants of the surviving spouse and the decedent). However, if the decedent had children from another relationship, then the surviving spouse will only receive one-half of the estate.

If there is no surviving spouse of the deceased, the probate estate passes to the following (Fla. Stat. 732.103):

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred.

10. What is the average cost of probate?

Generally, for formal administration, the average cost to probate an estate in Florida is 3% of the value of all the assets going through probate. Florida statutes state that an attorney may be paid 3% of the first million dollars of assets in the probate estate. Thereafter, a decreasing scale is broken down depending on the amount of money in the estate. The fee outlined in statute is in addition to the hourly rate for any “extraordinary” services provided by an attorney, such as tax advice on postmortem tax planning.

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