Wondering just what probate law encompasses in Florida? You’re certainly not alone. Even if you have a vague understanding of the probate process, it can be a complex area of law, and the best way to get a good understanding of it is to work with a qualified probate attorney. However, if you’d like to learn some of the basics before you contact a lawyer, read on to get the answers to five frequently asked questions about probate law.
First Of All, What Is Probate?
The term “probate” covers the entire process of a Florida court identifying and gathering the assets of a deceased person, using those assets to pay the deceased person’s debts, and distributing any remaining assets to the appropriate beneficiaries. Probate is legally necessary to resolve a decedent’s financial affairs and to make sure that their beneficiaries inherit the assets to which they’re entitled.
Do All Assets Have to Go Through Probate?
No. Some assets that don’t fall under probate include property that the deceased jointly owned with another person, assets that were directly designated to a beneficiary by the deceased (such as life insurance proceeds), and any assets held in a living trust. This is obviously a very simplified list, and to learn more,you should read about how to avoid probate, or talk to an experienced attorney.
How Long Does Probate Take?
Unfortunately, probate is not known for its expedient nature. Even in relatively straightforward cases, the probate estate must be open for a three-month creditor claim period. Most beneficiaries can expect their loved one’s probate estate to be resolved within five or six months, but if complications arise,(for example, if the estate has to file a federal estate tax return), the process can take longer.
Is There a Way to Shortcut Probate?
There are a few situations when Florida estates can actually shortcut probate. The process is called Summary Administration, and it applies to cases where the death occurred more than two years ago, or if the value of the probate estate is $75,000 or less. In each of these situations, the estate’s personal representative or a beneficiary must submit a Petition for Summary Administration, and the document must be signed by all beneficiaries. The Florida court will review the petition and, if it’s decided that the estate qualifies for summary administration, the judge will give the order to release the property of the deceased to the beneficiaries.
The estate can also avoid the probate process if:
- The property is exempt (e.g. a house owned with a surviving spouse).
- The only assets are personal property, and the value does not exceed $6,000 in funeral expenses or the medical expenses from the last 60 days of the decedent’s life. This is called disposition without administration.
How Much Does It Cost to Work with a Probate Attorney?
If you hire a probate attorney, he,or she is entitled to reasonable compensation for their work, under Florida law. It’s generally considered reasonable for the attorney fees to increase with the value of the estate, and payment may be based on a percentage of the total estate value. Florida actually has a statute that lists reasonable fees for estates of different values, but attorneys do not necessarily have to charge those fees, and some will offer a flat rate.
While these five answers have hopefully cleared up some general questions about probate law, they really only scratch the surface of this complex legal area. If you are a personal representative or beneficiary and want to know more about probate, the best thing you can do is sit down for a consultation with an experienced lawyer who can walk you through the complex process.
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.