The Florida probate process is the mechanism by which a person’s lifetime accumulation of assets and expenses is administered and distributed. The process will be required if a person has executed a Last Will and Testament, or if the person has not executed any estate planning documents at all, with some exceptions set forth below. Many people believe that if they have a Last Will and Testament, that is all that is needed and there will not be a probate. But probate is the only way a Last Will and Testament is recognized as valid and the probate process is required to direct the administration of an estate governed by a Will.
The process can be simplified into three steps, which are supervised by an estate lawyer and a probate court judge, after one dies. First, a representative is appointed to gather the assets of the decedent. Second, the representative will pay off any valid debts, expenses, and legal obligations which the decedent may have had before he or she passed away, as well as expenses associated with the probate process. Third, the representative will distribute the assets to the heirs.
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The most common assets are bank accounts, brokerage accounts, and real estate. However, not all property passes through the probate process. Florida homestead, for example, may not be considered a probate asset because spouses and minor children have a right to homestead free and clear of estate creditors, except for a mortgage secured by the property. Still, generally some type of Court proceeding will be required to recognize homestead rights and transfer ownership of the homestead real property from the decedent to the spouse or minor children.
Joint accounts, accounts with a “pay on death” designation, or a right of survivorship account, generally pass outside of probate. Assets titled in the name of a revocable trust also will avoid the probate process. In such instances, it is possible that many assets pass outside of probate, or without the supervision of estate lawyers and the probate court system. Thus, the Last Will and Testament, if one exists, will not govern these assets.
After the assets are identified, the probate process includes the consideration of creditors. A creditor to a Florida estate is someone who was owed something, typically money, by the deceased person during his or her life. Since the debtor is now dead, in order to get paid, the creditor must file a claim in the probate estate. A known creditor must receive written notice directly and unknown creditors are informed through a notice published in a local newspaper. There are strict time deadlines for a creditor to file a claim with the probate court, but generally the creditor claim period is three months. Florida does not let creditors make a claim more than two years after a person’s death.
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The probate process also provides a venue to let people raise objections to a Will or to the probate of a Will. Will challenges and contests, and petitions to revoke Florida probate are heard in the probate court. Probate litigation in Florida is growing because disinherited family members, former beneficiaries, second or third spouses and adult step-children often hire an attorney to make a claim, try to overturn a Will, or just get a share of an inheritance.
Once creditor claims and litigation has been resolved, the estate can be distributed and the probate closed. Generally, this can take anywhere from nine months to up to two years from inception, depending on the complexity of the estate and issues. But as is evident, Florida probates are not just for the reading of the Last Will and Testament. It is a process and serves many purposes.
The best estate plan is designed to avoid probate, given the time and expense associated with the process.
The best estate plan is designed to avoid probate, given the time and expense associated with the process. But if you find yourself needing to probate, it is important to know that you can hire any attorney you want and you do not have to retain the attorney who drafted the Last Will and Testament. Some attorneys insist on taking a percentage of the estate assets, regardless of the work involved, which is permitted by Florida Statutes. But other attorneys will merely charge for the time they expend on the matter, giving you the option to reduce fees by doing much of the “leg work” with guidance. Hiring an experienced estate administration attorney can shorten the duration and ease the expense of the probate process.
– For more information, call Katherine Barski of the The Villages, FL office of Bogin, Munns & Munns at 352.391.6031 , where she practices in the areas of estate planning, elder law, Business and Real Estate law.
NOTICE: The article above is not intended to serve as legal advice, and you should not rely on it as such. It is offered only as general information. You should consult with a duly licensed attorney regarding your Florida legal matter, as every situation is unique. Please know that merely reading this article, subscribing to this blog, or otherwise contacting Bogin, Munns & Munns does not establish an attorney-client relationship with our firm. Should you seek legal representation from Bogin, Munns & Munns, any such representation must first be agreed to by the firm and confirmed in a written agreement.