Florida Probate Process
The following Florida Probate process FAQ’s and answers are simply an educational guide to the probate process and only in the State of Florida.
The answers are not meant to be a legal reference or to disseminate any legal information what-so-ever. If the decedent has property in other states there may need to be an additional probate in those states to settle the probate of the estate. Always seek the advice and guidance of professionals such as an attorney for legal representation and a CPA for accounting advice. Because of changing state laws and judicial rulings, consult an attorney before making any final decisions regarding actions you should take in the administration of a probate.
The answers to these Florida probate process FAQ’s in this material have not been approved by the Florida Bar or the State of Florida. They are designed for educational purposes only and not to be construed as legal advice – always seek the advice of an attorney before making any legal or financial decisions.
Referrals are available on request.
For a more complete overview of Florida Probate Rules, Florida probate code and Florida Statutes go to:
What is a Will?
A will in the state of Florida is a written document that is signed by the decedent and witnessed so that it meets the standards of Florida Probate law. This document has to be approved by a probate court and declared “valid” for the estate’s assets to be legally distributed to the rightful beneficiaries (“heirs:)”.
The purpose of a will is for the decedent to designate his beneficiaries, a personal representative and how the estate’s assets are to be disbursed. If a personal representative was not chosen, or if he is deceased, the court will appoint a Personal Representative.
The duty of the Florida probate court is to facilitate the legal and orderly distribution of the assets of the estate and determine the single valid will if more than one is presented to the court. Just because an individual has a will does not mean it is legally valid, this is what will be determined by the probate court. If the will is declared invalid the court will revert to probating the will under the intestate statutes which could mean the wishes of the decedent may be ignored.
What if there is no Will?
Any assets that are titled in the decedent’s sole name become as asset of the estate at the instant of the death of the decedent under Florida Probate law. The State creates a legal entity entitled the “Estate of John Smith” to provide an orderly distribution of the decedent’s assets in accordance with the final wishes of the decedent.
If the decedent did not have a valid will under Florida Probate law at the time of his death, the estate is probated under the default provisions of Florida law or so called “intestate”. The probate court will designate an administrator and the estate’s assets will be distributed pursuant to the intestate provisions of Florida law.
The proposed asset distribution may not be what the heirs were expecting or what the decedent may have wanted. If this is the case, it is important to have proper legal representation to make a case to the court for any specific distribution of assets.
You should check with a probate attorney for the intestate “order of priority” of distribution if you believe you may be entitled to a portion or all of an estate that will be probated with no will. This is very important to do as soon as possible to preserve any rights to the probate assets.
Intestate probates allow for a statutory distribution of assets to a surviving spouse and certain homestead exemptions as well as other interests to qualifying individuals. The probate process is also where creditors of the estate will have their claims heard and paid if there are assets available before distribution to beneficiaries. Once all creditors have been paid and the distribution of assets is determined, the assets are distributed and the estate is “closed” and the estate ceases to exist.
What is a Fiduciary and What are His Responsibilities?
While the representatives of an estate are called by various names: Executor, Executrix, Administrator, in Florida the executor of the estate is called the Personal Representative. This individual is appointed by the court unless the decedent’s will specifically specified an individual who is living and capable of assuming the responsibilities of the estate’s administration.
Besides administrating the physical assets of the estate the Personal Representative has the fiduciary responsibility and is legally required to make the tax filings of the decedent’s last income tax return and the estate tax form for the Internal Revenue Service (Form 4012). The current (2015) estate assets amount that is exempt from estate tax is $5,340,000 and even if the estate is less than that amount the estate tax and income tax filings must be made.
State estate taxes may be applicable in some states, currently this is not the case in Florida. For complete information on this procedure we have referrals to attorneys and CPA’s to answer any questions regarding any specific forms or documents you may be required to complete.
What if the Decedent has a Revocable Living Trust?
If the decedent has what is referred to as a “Revocable Living Trust”, the trustee of the trust has the fiduciary responsibility of administering the probable assets of the decedent’s estate. The intent of a Living Trust or Revocable Trust is predominately to avoid probate. However, some assets may not have been titled properly or included in the “pour-over” Will as part of to the Trust. All assets of the decedent whether in the Living Trust or not, are considered part of the estate for federal estate tax purposes.
The trustee has the legal obligation to pay creditors just as in a probate and distribute the assets under the terms of the trust agreement. In many cases the Living Trust was formed to allow the assets of the decedent to be distributed over an extended period or so called “asset control from the grave”. As with a Personal Representative, the Trustee has the fiduciary responsibility to file tax returns and pay any estate taxes due.
The Trustee must file what is called a “Notice of Trust” with the local Clerk of the Court where the decedent resided. The reason is to allow publication of the decedent’s death so creditors can come forward to make claims to the Trustee. If the Notice of Trust is not filed with the Clerk of the Court the creditors have two full years from the decedent’s death to make claims versus the statuary 90 days as allowed in probates.
What if a Beneficiary has a Power Of Attorney for the Descendent?
A Power of Attorney is a legal document that is witnessed and allows a designated person, persons or entity to administer certain affairs (Limited POA) or all the individual’s finances and assets (Full POA).
A rather common misconception is that a Power of Attorney, whether a “Limited or Full” POA succeeds the death of the decedent. A common vernacular in probate circles is that the POA dies with the decedent and the estate then needs to be probated to determine who has control of the estate’s assets and the final distribution of these assets.
Another common misconception is that an “only child” is entitled to the assets of the estate when there is no will in place at the decedent’s death. The final distribution of the estate’s assets will have to be determined by probate if a Living Trust is not in place or the assets are not titled in such a manner as to bypass the probate process such as joint tenancy or Life Estate.
Can a Spouse be Cut out of a Will?
In general the answer is “No”. In the State of Florida a legally married spouse at the time of the decedent’s death is entitled to approximately a 30% share of the estate’s fair market value unless there is a pre-nuptial or post-nuptial agreement in effect that states otherwise. In actuality it is important for the surviving spouse to retain competent legal advice just in case other beneficiaries mount a legal defense against his or her right to the estate’s assets.
What is a Probate?
A probate is the legally required process where the distribution of the assets of a decedent person(s) is determined through a statutory judicial process. The specific statutes governing this process can be found in the Florida Probate Code which can be found in Chapters 731 through 735 of the Florida Statutes. Additionally, the rules governing Florida probate proceedings can be found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530). It is strongly suggested that you have a specialized probate attorney review your specific case. Not properly handing the assets of an estate or the probate itself can jeopardize the title transfer of these assets and even the possible loss of control of the assets.
The probate process is designed to provide a format for the orderly transfer or the estate’s assets. The actual “order of distribution” is to first pay the cost of the probate then legitimate creditors and finally the rightful beneficiaries of the estate.
Why is a Probate Necessary?
The judicial process of “probate” is required under Florida Probate law for the certification of a valid will for the decedent, passing title to certain property to qualified beneficiaries and finally the disbursement of the estate’s remaining assets to its beneficiaries.
The statutory purpose of the probate process is to facilitate the orderly transfer of assets of the decedent to creditors and beneficiaries. If no will is submitted to the court for validation, the probate process will be Intestate and the court will decide who is entitled to what assets.
What Assets Must be Probated?
The only assets of a decedent that must be probated are ones that are in his or her name as owner where there is partial or complete ownership and which do not have a designated beneficiary in the title or document and where the beneficiary of the asset has been designated as the “Estate of the Decedent”.
What Assets Do Not Have to be Probated?
Certain assets of the decedent must be probated under the terms of his will or Florida law. However, there are other assets that “bypass” the probate process entirely. These assets are still considered part of the assets of the decedent’s estate for federal income and estate taxes that may be payable.
The first common denominator for non-probate property or assets is joint ownership. If the joint ownership lacks a provision for transfer on death (“automatic succession”) to the other owner(s) the asset will have to be part of the decedent’s probate to determine future ownership.
The other common assets that are not affected by the probate process are assets held in:
1. “Joint Tenants with Rights of Survivorship (“JTWROS”);
2. a bank account titled as “In Trust For” or “Pay on Death” (POD) and a designated beneficiary,
3. an IRA, 401K or other retirement plan that has a designated beneficiary (not the decedent’s estate);
4. an insurance policy with proceeds going to a designated beneficiary (not the decedent’s estate);
5. real estate owned by husband and wife and designated as “Tenants in the Entirely”;
6. assets owned by a Revocable Living Trust or an Irrevocable Trust and
7. other assets that may qualify but an attorney should be consulted for specific questions.
Real estate partnerships or any assets that are titled as “Tenants in Common” will have to be probated to determine who will receive the partner’s designated interest in the asset.
Who is Involved in the Probate Process?
Generally speaking, the institutions and individuals involved in the probate process are:
1. The Attorney providing legal advice to the Personal Representative of the estate,
2. The Personal Representative of the estate,
3. The beneficiaries of the estate,
4. The Clerk of the Court where the probate is filed,
5. A Circuit Court Judge who will preside over the probate,
6. Creditors of the estate and,
7. The Internal Revenue Service.
What is a Summary Administration?
This is the simpler of two types of probate administration and is used when the estate qualifies. The qualifying guidelines for the estate are –
1. The death occurred over two years ago from the date of the administration or
2. The value of all the property that has to be probated (non-probate items are excluded) does not exceed $75,000.
The Florida probate is started by the designated personal representative or a family member who may be inheriting the property who files with the probate court what is known as a “Petition for Summary Administration”. The Petition states that the estate qualifies for this type of administration, states the assets that are to be probated and lists known beneficiaries who must each sign the petition. If there is a surviving spouse, this individual must sign the Petition.
The court doesn’t appoint a Personal Representative but instead, if the probate qualifies for the Summary Administration, the court issues a “Court Order” that releases the probate property to the individuals or entities that are listed in the original Petition. The beneficiary will them use this Court Order to transfer the remaining assets to the heirs.
What is a Formal Administration (Regular Probate)?
Essentially any probate that does not qualify for a Summary Administration will be a candidate for a Formal Administration. Typically the personal representative will be appointed in the will of the decedent. If not, an “interested party” will ask the court to be appointed as the personal representative of the estate.
If the court agrees it will issue what is known as “letters of Administration” which appoint the applicant as the personal representative of the estate. The personal representative’s responsibility at the appointment by the court include, but are not limited to, inventorying, evaluating assets and selling assets, paying debtors, paying all taxes due, and finally distributing the remaining assets to the legally designated beneficiaries.
If the will is a so called “self-proving” will and it is not contested by any purported beneficiaries, the process can be efficient and speedy after the claims period for creditors. However, if the will is contested, a protracted time can elapse before any final distributions can be made.
Usually the Florida probate process takes from 6 months to a year depending on the types of assets, decisions of how the distribution of assets is to be made to beneficiaries and any court actions brought against the estate. Once the assets have been disbursed, the personal representative will do a final accounting for the court and ask that the probate be closed.
What Documents are Necessary for a Probate?
The usual documents that are needed for a probate are:
1. Two Death Certificates for the decedent,
2. The original copy of the will that is to be probated,
3. All asset account information such as bank statements, tax returns, retirement account statements,
4. Any life insurance policies,
5. Any accounts that have beneficiaries designated on or in them – POD (Payable on Death bank accounts), IRA beneficiaries and insurance policies where the beneficiary is designated other than the “estate” of the decedent,
6. Deeds for real estate if they can be found (they should be recorded in the public record),
7. Mortgage notes,
8. Vehicle titles – boats, cars, recreational vehicles, etc. and
9. Any additional documents as required by the court.
Where is a Probate Filed?
The documents needed to begin the probate process are filed with the Clerk of the Court in the County of the decedent’s residence and at the time of filing a Filing Fee must be paid. In years past all of the information submitted for the Florida probate process was available for public scrutiny. However, in recent years, private financial information regarding the estate is no longer available to the public.
Who is in Charge of the Probate Process?
Once the will is filed at the local Clerk of the Court, a circuit court judge will put the probate into the court’s calendar and he will preside over the probate proceedings. He will begin the probate process by ruling on the validity of the will submitted and any other wills that also may have been submitted.
The judge will next appoint a personal representative of the estate to manage its administration and distribution of assets. He does this by issuing what are called “Letters of Administration” which authorize the personal representative to move forward. If any legal challenges are made to the court regarding the estate, the judge will hold hearings and make a final decision about which claim is valid in the form of a “court order”.
Who can be a Personal Representative?
The personal representative of the estate can be an individual or a corporate entity. If the personal representative is an individual he must be a Florida resident or of direct lineage or close relative of the decedent. In addition, individuals cannot be convicted felons, under the age of 18 and must be mentally capable of handing the responsibility of the administration of the estate.
Typically corporate entities that are allowed as personal representatives of an estate are banks, savings and loan institutions or a trust company incorporated in Florida.
Who Will the Court Appoint as the Personal Representative?
If the decedent had a valid and uncontested will and if the appointee qualifies, the judge will likely appoint that person. If there was not a valid will (Intestate) the court will first appoint the surviving spouse if she or he agrees to serve. If this is the case, the court will appoint who the beneficiaries designate. If there are no beneficiaries or they cannot agree on a designate, the judge will appoint a personal representative after a formal hearing.
Who Gets Preference as the Personal Representative?
The preference for being chosen as personal representative is also offered first to the surviving spouse, next to a relative and finally to whom the beneficiary(s) request. Any appointee must qualify as to competency, legal age and his ability to manage the estate’s assets.
Does the Personal Representative Need an Attorney?
There is no question that an individual who will become the personal representative of the decedent’s
estate should have an attorney guide him through the process. The personal representative will be
confronted by a myriad of legal issues and these decisions can greatly impact the outcome of the Florida probate. Simply assuming what needs to be done or reading outlines of how the probate process works can cause confusion for the personal representative and the probate judge.
When the personal representative hires an attorney the attorney will represent the personal representative and not the beneficiaries of the estate. If there is a clause in the will that specifies an attorney or law firm to represent the estate, this clause is not binding in Florida and the personal representative may select any attorney or firm he wishes.
What Does a Personal Representative Have to do?
The personal representative is responsible for the administration and distribution of the assets of the estate. If it is determined that the personal representative of the estate has mismanaged the estate’s assets, the beneficiaries can hold him liable for any loss of assets. After the Florida probate has been opened in the circuit court and the Letter of Administration has been issued, the legal responsibilities of the personal representative include the following:
1. Gathering the location and value of all of the probate assets and safeguarding them until distribution to the legal beneficiaries,
2. Hire professionals to help with the administration of the estate including attorney, accountant, and, if applicable, investment adviser or property appraiser,
3. A “Notice of Administration” will have to be filed with the court. If any of the beneficiaries or creditors have any objection to the administration of the estate’s assets The Notice of Administration must include procedures to make their objections,
4. Publish the “Notice to Creditors” in the local legal journal or newspaper so that creditors will know there is a probate and they can come forward to make claims against the assets of the estate,
5. Do a diligent search to find creditors and notify them of the probate and how much time they have to file any claims,
6. Make determinations of which creditors’ claims are valid and how much has to be paid on each one,
7. Defend any lawsuits brought against the estate by creditors or other individuals or entities,
8. Pay all valid claims from creditors, judgments or other liabilities that are warranted,
9. Pay all expenses for the administration of the estate,
10. File and pay all corporate and personal taxes related to the decedent and the estate,
11. Pay any statutory amount due to a surviving spouse,
12. Pay or distribute remaining monies or assets to legally determined beneficiaries and
13. Close the probate.