When it comes to estate planning, there are many things you have to consider. You have to think about your property and assets, medical care, beneficiaries, wills, trusts, life insurance – the list goes on and on.
What you might not immediately think about is probate, because it’s not necessarily talked about or readily depicted for us in popular movies or TV shows. Why? Probably because probate isn’t very glamorous. But it’s very important to understand what it is, how it works, and what it means for you and your loved ones.
Basically, probate is the legal process of administering a deceased person’s estate, resolving all debts and claims, and then distributing the remaining property. But there are other details about probate that you need to know. So let’s look at four things you should know about probate administration in Florida.
- Probate administration only applies to probate assets. You may have a variety of assets, but probate is only concerned with certain assets. Specifically, probate assets are the assets a deceased person owned solely in his or her name at the time of their death or the assets that are co-owned but without an established provision for the automatic succession of ownership in the event of a death.
So what constitutes a probate asset? If you have a bank account that is only in your name, it will be a probate asset. If that bank account is only in your name but is payable or transferable on death to someone else, then it’s not a probate asset. If that bank account is a joint account with right of survivorship established to a co-owner of the account, then it’s not a probate asset. Other items that may or may not be probate assets include life insurance policies, annuity contracts, individual retirement accounts, real estate, and other assets.
- Probate can involve a lot of different people. Every estate is different, but depending on your particular estate and the facts of your situation, probate administration may include:
- The clerk of the circuit court in the Florida county where the deceased person lived at the time of their death
- The circuit court judge
- A personal representative or executor
- A probate attorney who can provide legal advice to the personal representative throughout the probate proceedings
- The deceased’s debtors – credit cards, health care providers, etc. – who will be filing claims for any debt owed
- The Internal Revenue Service (IRS), for any federal income taxes owed by the deceased or their probate estate
- Your designated beneficiaries
- The personal representative is in charge of administering the probate estate. The personal representative – an individual or a bank or trust company – is appointed by the judge to administer the probate estate. The personal representative has a number of legal obligations in order to properly handle the deceased’s estate. Some of those responsibilities include:
- Identifying, gathering, and inventorying the probate assets
- Publishing a “Notice to Creditors” to alert any potential claimants
- Serving a “Notice of Administration” to provide any objectors with information about the probate estate administration
- Searching for any known creditors
- Objecting to false claims
- Paying valid claims
- Filing tax returns and paying any necessary taxes
- Paying probate expenses
- Distributing any remaining assets to beneficiaries
- Closing the probate estate
- You can decide who your personal representative will be. If you want to be able to choose who will be your personal representative, you need to create a valid will and designate who your personal representative will be in that will. Again, the representative has to be a person, bank, or trust company who is legally qualified to be that representative.
A personal representative has to be a Florida resident or a spouse, sibling, parent, child, or other close relative. If someone doesn’t live in Florida or isn’t a close relative, then that person can’t be a personal representative. Also, a personal representative can’t be a minor under 18 years old, a convicted felon, or someone who is physically or mentally unable to perform the necessary duties.
If you don’t have a will, the court will appoint your personal representative. Your surviving spouse will be the first one chosen. If you weren’t married or your spouse doesn’t want to serve, he judge will see if a majority of the heirs agree on a particular person.
Probate administration can be a lengthy and expensive process depending on the nature of your estate. If you have any questions about probate or alternatives to probate, you should contact a knowledgeable Florida probate administration attorney to discuss your concerns and needs.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.