Most of the time, clients come to my office after a loved one has passed because they are in need of opening a probate administration. Usually, the client does not know what a probate administration is, or how it works, but they are told by a banking institution, or a closing title company that there is a need to open a probate so that money held in the decedents name can be accessed, or a property owned by a decent can be sold.
As a probate attorney, I understand that when a loved one has passed the last thing you would want is to become involved in a legal proceeding, like probate. However, because the probate process is necessary in allowing the assets of the decedent to rightfully flow to the heirs, it is not something to ignore. A knowledgable probate attorney, that is empathetic to your situation, can make all the difference.
Generally speaking, probate is a necessary court-supervised legal process used for the verification and administration of an individual’s assets after death. This legal process varies from state-to-state and is necessary to ensure assets are correctly distributed to beneficiaries.
Under Florida law, there are three main types of probate: formal administration, summary administration, and disposition without administration. See below for a description:
Formal Administration – Formal administration is most commonly referred to as “formal probate.” This type of proceeding is usually the standard type of administration needed unless the decedent has passed for over two years, and there are no creditor claims to deal with. Formal probate administration takes place in the local Circuit Court of the County in which the decedent resided at the time of their passing.
Summary Administration – Summary administration is a shortened form of Florida probate that does not require the appointment of a Florida personal representative. Where the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, must not exceed $75,000. The process of this type of administration is initiated by filing a Petition for Summary Administration that must be signed by a surviving spouse and/or beneficiaries. In short, this is an expedited version of probate, but the estate must qualify for it.
Disposition Without Administration – As the words “without administration” may suggest, this process actually involves skipping the probate hearing because Florida Statute 735.301 allows for an informal application to the court for transfer of assets when the decedent has only left personal property, no real estate, and such personal property is considered to be exempt property, such as household furniture, vehicles, etc.
What happens when someone dies without a Will in Florida?
When someone dies without a will, or valid will in Florida, they are declared to have died “intestate.” It’s important to note, that “intestate” does not mean that the property now belongs to the State of Florida. In means that the passing of the assets is governed by Chapter 732 of The Florida Statutes, which may or may not be the way that the decedent wanted his/her assets to pass.
Click the image below to expand to view a helpful chart on how assets flow when someone passes without a will
Do Wills Have To Be Filed With The Court in Florida?
Yes. Florida law requires that if you have a decedent’s original will, you have to file it within ten days of learning of the decedent’s death. Filing the will is not the same thing as probating the will. Filing the will simply puts the original will into the custody of the court. Admitting the will to probate requires a petition to administer the estate.
Do You Have to Probate a Will in Florida?
The simple answer is that you do not have to probate a will in Florida, unless there are assets left by the decedent that will require court administration to have them legally designated to the rightful heir or beneficiary. If there are no assets to probate, there would be no reason to probate a will.
Are there ways to avoid probate?
Yes, usually. It would be advisable to consider putting assets into a revocable trust before death, designating bank accounts with beneficiaries, titling real property with survivorship or entireties language. Keep in mind that all of these “ways” to avoid probate have very serious ramifications, and should not be done without consulting an estates and probate attorney first.
How long does probate take?
This will depend on a variety of factors such as: the size of the estate, whether or not there is a will, if there is a dispute with creditor(s) or beneficiaries. It is reasonable to expect the average Florida probate process to take between 6 to 12 months.
Can a creditor who the decedent owed money open probate?
Any creditor could probate the estate of the decedent to get paid what they allege is owed to them. However, if there are assets that are protected like homestead property, then creditors would not have any assets to collect from. Section 733.710, Florida Statutes states that a creditor’s claim is barred if the creditor does not file a statement of claim in a decedent’s estate within 2 years after the death of the decedent. Therefore, after 2 years, all claims from creditors of the decedent are permanently barred.
Who gets notice that a probate is being opened?
Florida law requires that a Notice of Administration be provided to beneficiaries named in the will, as well as surviving spouses. The Notice of Administration provides important information, such as the deadline for challenging the validity of a will, and alerts the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowance.
Do creditors of the decedent get notified that he/she has passed away?
Known creditors must be given a Notice to Creditors, stating that the creditor has 90 days within which to file a creditor claim in the estate. Notice to Creditors must also be published in the local newspaper, alerting such creditors of the deadline for filing creditor claims. The department of revenue and the American Health Care Administration (AHCA) also gets notice of the passing of the decedent.
If the decedent was involved in litigation while alive, and has now passed, but the case is still open, do I need to open probate?
If the decedent was involved in litigation before death, such as a personal injury lawsuit, the probate estate will need to be opened so that the estate can be substituted in for the decedent in the litigation.
Do I need to open probate to file a wrongful death claim?
When someone has been killed through the fault of another, a wrongful death claim would likely be filed. Under Florida law, only the personal representative of the estate can file the wrongful death claim.
Is there a more simplified administration for probate, rather than a lengthy formal administration? Under section 735.201(2), Florida Statutes, a Florida probate estate that is opened more than 2 years after the decedent’s death qualifies for summary administration, even if the total assets of the estate are greater than $75,000.00.
What happens once a formal probate has been opened? Once the estate has been opened and letters of administration are issued to the personal representative, the personal representative would take custody of the assets of the deceased that are properly part of the probate estate, and petition the court for a designation of depository where all liquid assets will be placed until a court order provides otherwise. All known creditors will be notified of the decedent’s passing, and a notice to creditors will be published in the newspaper circulating in the county where the probate has been filed. If someone challenges the validity of the will or there are issues of contention, the process could take years as well as be very expensive. If the estate must deal with real estate, business interests, or a wrongful death claims, such could extend the need for probate for years. For the final distribution, the personal representative can issue a plan of distribution and final accounting to the beneficiaries or the beneficiaries could agree with signing a waiver. The personal representative, at the conclusion of the estate administration, will file a final accounting, plan of distribution, and petition for discharge with the probate court.
If you would like to learn more about Florida probate rules, or have an issue that pertains to probate administration/litigation, anywhere within the state, call our office for more information.