Following an individual’s death, certain legal proceedings must be carried out in order to divide the decedent’s remaining assets. These proceedings are referred to as probate, and although the probate process is relatively routine, it can still be complicated, confusing, lengthy, and often downright aggravating for those involved.
Because probate proceedings may be unavoidable if the right steps aren’t taken before an individual’s death, it’s important to understand what exactly the process is and how it works. Understanding probate can make things easier for you in the long run, and can hopefully make the process seem less daunting. With that in mind, here is what you need to know about filing for probate in Florida.
Filing for Probate: The Process
Probate proceedings are necessary whenever an individual dies and leaves behind assets.Click To Tweet The process is designed to administer the decedent’s remaining property in as fair and orderly a manner as possible.
Step 1: The filing. The probate process officially begins with a filing. A representative (often designated by the decedent) will present to the court a copy of the death certificate, the decedent’s will, and a petition requesting that the will be admitted to probate.
Step 2: Alerting all parties. As soon as the necessary documents have been submitted and the court is ready, all parties who may receive assets from the will (beneficiaries) and those who would legally have a right to the decedent’s assets had there been no will (heirs), are alerted.
Step 3: Assigning authority. The court then assigns authority to the representative and he or she is officially placed in charge of settling the estate. If the decedent left a will, the will must be filed with the court and proven valid.
Step 4: Administering the estate. From there, the representative essentially carries out all things that must be done. He or she will gather the decedent’s assets, pay any of the decedent’s remaining debts or taxes, and ultimately distribute any remaining assets to beneficiaries.
The representative does all of these actions under supervision of the court, and when the process is completed and all assets have been accounted for, the representative must present to the court a final document outlining all the accounting details and processes. After the court receives this document, any heirs or beneficiaries are given the opportunity to object to the handling or distribution of the assets.
Step 5: The end. Once the assets have been distributed, the representative makes a formal request to the court to close the case, which is generally filed without issue. This marks the end of the probate process.
While this overview may make the process seem relatively simple, the actual process can be far more complicated. This is especially true if lots of people are involved or if a large amount of assets were left behind. Considering all the potential complications that probate administration can bring, it is always a good idea to consult with a qualified attorney before beginning the process.
Summary Administration vs. Formal Administration (“Regular” Probate)
Although the probate process can sometimes last up to a year or more, in certain situations the process can actually be a lot simpler. These situations are those that are eligible for summary administration.
Typically, an estate is eligible for summary administration if:
- The value of the estate is $75,000 or less; or
- The decedent has been dead for two or more years
It is important to note that it is not necessary for decedents to be residents of Florida in order to be eligible for summary administration. As long as the decedent owned real estate in Florida and met one of the above criteria, their estate is eligible for summary administration.
Summary administration is normally a good option if you are able to take advantage of it. It can save families some of the time, hassle, and money that formal administration may require. Unlike regular probate administration in Florida which can go on for years, summary administration can sometimes be handled in as little as one week. (Although it’s more likely that it could take between two to four weeks.)
Know What You’re Getting Into
Of course, there are always some unpredictable factors that may make complicate the probate process, even with summary administration. Situations such as will contests, an inability to locate heirs, and problems with outstanding debt or creditors can prolong and complicate the process. In anticipation of these situations, it’s important to have qualified legal representation on your side when you begin the process.
To help make the probate process as smooth as possible, contact an experienced professional at Wintter & Associates today.
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.