When someone dies, regardless of whether they have a will or not, their estate goes through probate. For those that are new to estate planning, we will review some frequently asked questions about probate and the probate process in Florida.
What is probate?
This is probably the most asked question when it comes to probate. After all, it’s not a term you encounter every day.
Probate is the court-supervised process for identifying and collecting the assets of a deceased person; paying debts, claims, and taxes; and distributing the decedent’s assets to their beneficiaries. The laws regarding probate are found in Florida’s Probate Code.
What are probate assets?
Probate only applies to a decedent’s probate assets. Probate assets are assets that the decedent owned solely in his or her name at death. They may also include assets that were co-owned but didn’t have a provision for automatic succession of ownership upon death.
For example, a bank account solely in the deceased’s name qualifies as a probate asset. If, however, that bank account is payable or transferable on death, or held jointly with rights of survivorship, then the account is not a probate asset.
What role does a will play in the probate process?
A will allows someone to legally leave their assets to beneficiaries and can also name a personal representative to handle the probate administration along with other provisions. For a will to be valid, it has to be executed according to Florida law and signed by the decedent and two witnesses.
If a decedent has a valid will, that will controls how the decedent’s assets are distributed. If the decedent doesn’t have a will or the will isn’t valid, then Florida law will designate who the personal representative will be, who the beneficiaries are, and how they will divide the estate.
Who is involved in the probate process?
There are a number of people that are involved in the probate process. These people can include:
- Clerk of the Circuit Court
- Circuit court judge
- Personal representative
- Personal representative’s attorney
- Creditors who file claims
- Internal Revenue Service (IRS)
- Surviving spouse and children
- Any other beneficiaries
- Trustee if the decedent has a trust
What does a personal representative do?
A personal representative is in charge of administering the probate estate, which includes a number of duties, such as:
- Identifying, inventorying, and valuing the probate assets
- Publish a Notice to Creditors so creditors can file claims
- Serve a Notice of Administration to provide information about the probate estate administration and to notify those who might have objections
- Conduct a search to find “known or reasonably ascertainable” creditors
- Pay valid claims and object to improper claims
- File tax returns and pay taxes
- Employ necessary professionals to help with the process
- Pay probate administrative expenses
- Distribute remaining assets to beneficiaries
- Close probate estate
Because a personal representative is responsible for so much, they are compensated for their services.
How long does probate take?
Every estate and probate administration is different. Some estates take longer to administer than others. The simplest probate estate is required to be open for at least the three-month creditor claim period, so a simple probate estate could take 5-6 months to administer. If the personal representative, however, has to deal with selling real estate or resolving a disputed claim among other factors, the probate administration could take longer – sometimes more than a year.
Probate can end up being a lengthy and often expensive process. For that reason, many people try to avoid probate for certain assets. If you have questions about probate and how to get through it – or avoid it altogether – reach out to an experienced and respected Florida estate planning attorney 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.