“Probate” is one of those words lawyers use all the time and know exactly what it means. But if you haven’t gone to law school, chances are you will never come across the word until you find yourself needing to use the probate court. So what does probate mean? And what should you expect if you open a probate administration after your loved one’s death?
What the Probate Court Does
Probate is the court-monitored finalization of a deceased person’s financial affairs and the distribution of their assets. The Florida probate court oversees the process to make sure the right person is named executor or personal representative, and that they follow the law when it comes to creditors and heirs.
Without the probate court, it is often impossible to close out your loved one’s accounts or sell their property. That is because many bank staff, realtors, and other professionals will not let one person handle the affairs of another without a court order, even after that person is deceased. To get that court order called the Letters Testamentary or Letters of Administration, you will have to file a probate administration case in the county where your loved one lived or had property.
What Property is Covered in Probate
Probate administration applies to all the assets your loved one owned in their name only at the time of their death. That includes:
Houses and land (located in Florida)
Bank and investment accounts
Furniture and personal items
Life insurance, annuities, or retirement accounts payable to the deceased’s estate upon death
However, much of this property can be excluded from probate depending on how it was titled. Assets owned jointly between spouses (not as tenants in common), trusts with successor trustees, or accounts with named beneficiaries will pass automatically without the formality of a court proceeding. You and your estate administration attorney will need to look into how each asset was owned and titled to find out whether the court should be involved in the distribution of that asset.
3 Types of Florida Probate
There are 3 ways your loved one’s estate can go through probate. Which one applies to your case depends on the size of the estate, the types of assets included, and what kind of debts or credit accounts your loved one had at the time of their death.
Disposition of Personal Property Without Administration
This option avoids court supervision, but it is only available in limited circumstances where the deceased person owned no land or real property and his or her final medical bills and funeral expenses have been paid or consented to. In reality, this only applies to a very small number of estates which have minimal value. If you are hiring a probate attorney you will most likely need to use one of the more formal procedures described below.
This option is a short-cut to full probate administration and avoids the appointment of a personal representative. In most cases, it is shorter, easier, and less expensive than formal administration. However, it is only available if:
The person died more than two years ago (meaning that creditor claims have expired), or
The value of the entire estate (minus exempt property including a Florida primary residence) is less than $75,000, and there are no creditors or provision is made for their payment.
Your probate attorney will help you file a petition demonstrating that the estate qualifies for summary administration. You and your lawyer will then need to send a copy of the petition to the beneficiaries, and if there are creditors, to all of your loved one’s creditors to arrange to pay their debts using the assets available within the estate. Once that is done, the probate court can order the distribution of all remaining assets without the additional formality of a full probate administration.
Most Florida probate cases involve formal administration. It covers any situation that doesn’t qualify for one of the other probate options or that can’t be entirely resolved outside of court (such as a trust or jointly titled property). Formal administration involves close court-supervision as a deceased person’s assets are collected, valued, and distributed. It starts with a Petition for Administration and several related documents. Next, the Court will appoint a personal representative to act on behalf of the estate. If your loved one had a Will, it might name who this person should be, but they are not the official executor until they have received Letters of Administration.
Once the Letters of Administration are issued, it is up to the personal representative and their estate administration attorney to do the work of administering the estate. This can include:
Publishing a Notice of Creditors and sending it to all known creditors
Taking possession of the estate’s assets and managing them until they can be distributed (or documenting that they have been left with the apparent intended beneficiary under the Will)
Creating and filing an inventory of estate assets including the fair market value of each asset
Collecting any debts owed to the deceased (including suing debtors who refuse to pay)
Operating the deceased’s business
Maintaining investments as a prudent investor
Paying taxes and expenses
Hiring and paying experts and professionals to assist with the estate administration (i.e. accountants, realtors, or attorneys)
Identifying beneficiaries and any special exemptions or rights they may have
Paying or objecting to claims from creditors
Apportioning any estate taxes between beneficiaries (unless payment is directed in the Will)
After you have finished all the necessary steps, you and your probate attorney can file a petition to close the estate. The judge may ask for some additional information, but once all the questions have been answered, he or she will sign an Order of Discharge. This releases the personal representatives from his or her duties and brings the case to a close.
This entire process generally takes at least six months. Sometimes it can take years to resolve creditor claims or sell property. Having an experienced probate attorney by your side through the process makes it easier, less stressful, and makes sure everything is done properly to satisfy the court.
At Harrison Estate Law, P.A., our experienced estate and probate team can help you identify probate assets, select the right kind of probate administration, and complete the probate process. We will help you be sure your loved one’s wishes are honored and affairs are handled. Contact us here or call 352-559-9828 to get help today.