Everything You Need To Know About Probate In Florida
Probate law is among the most complex and stressful legal processes you may ever go through. It is not simple to go it alone, but you don’t have to. At The King Firm, PA, our dedicated attorneys take pride in providing speedy, efficient probate services.
They’re here to answer the probate questions facing people in St. Petersburg and Tampa Bay. They can help you resolve your probate issues without delay. Because they’ve spent so much time working in probate court, our lawyers can’t help but field many questions from both clients and anyone else. Their goal is to find the exact right answer for you, which depends on many important and unique factors. However, there are many questions that they get that have much more simple solutions. The answers to these questions, below, may help you understand much of what is ahead for you and your family.
What is probate?
Probate is the legal process by which you and your family will resolve the debts and assets of a deceased loved one. The probate court will validate the will and also hear any disputes regarding an estate distribution. Probate law in Florida has many complexities, and, due to the large elderly population, there’s a good reason for it.
What are the types of probate administration in Florida?
Probate administration is the way in which the probate court will review the estate in front of it. In Florida, there are two types of administration, and they are vastly different.
The formal administration process is the longer, more involved process. This is reserved for larger estates with more significant assets. There may be many claims against such an estate, and it requires detailed, attentive review from all involved.
Summary administration is a much faster, streamlined version of the probate process. It is only available in two situations:
- The estate’s value is less than $75,000.
- The deceased passed away more than two years ago.
The court will quickly and less expensively do its work and provide you and your heirs with what it determines you are due, but there are fewer choices and no opportunity or need for a personal representative.
What are my responsibilities as an executor?
In Florida, there is technically no such thing as an “executor.” While you may still be called an executor informally, all legal and court documentation will consider you the “personal representative.” Regardless of what the court or anyone else calls it, if you’re in this position, you will have the following duties:
- Ensure distribution of assets and debts: This is the most important part of the job. You will be the point person handling each and every claim against the estate and ensuring the proper apportionment of what is left to the heirs.
- Keep accurate records: Many people have a vested interest in what you do and how you do it. Keeping records is important, not only because the court will want them, but because they will protect you as well.
- Notifications: You’ll have to notify banks, creditors, family and nearly any other individual with a vested interest in the estate of what’s going on.
Keep in mind: As a fiduciary, you must act in the best interests of the estate. You may have immense power over what happens, but at the end of the day, the estate must be closed properly and according to the law.
How do I navigate probate without a will?
The good news here is that you mostly won’t have to navigate things, as there is a statutory process for handling estates without wills. The probate court will likely appoint a personal representative who will do the same actions as described above. However, when it comes to distribution, it will follow Florida’s intestacy laws.
Very briefly, intestacy laws dictate the order of inheritance of your various relations. The most complex piece is the first level of the spouse. Under the law, the spouse would receive 100% of the estate unless there are children not related to the surviving spouse. If the children are not descendants of the surviving spouse – or descendants of the surviving spouse not related to the deceased – then the spouse receives 50%, and all the descendants get a share of the remaining 50%.
If there is no spouse, then the court divides the estate equally among family members as follows:
- All direct descendants
- If there are no direct descendants, then the deceased’s surviving parents
- If there are no surviving parents, then the deceased’s siblings or – if they are no longer living – their children and grandchildren
- If there are no siblings or surviving nieces and nephews and so on, then half of the estate will be dispersed to all surviving maternal relatives and half will go to surviving paternal relatives.
- If there are no surviving relatives, then 100% of the property will go to the last deceased’s spouse’s heirs, and the intestate process starts all over again.
This is a complex set of rules, and it has no space for the preference of the individual. If a person was estranged from their family and wanted their estate to go to charity, that would not happen without an estate plan.
Is an attorney required to handle a probate?
While it is not required, an attorney is definitely a major benefit to any and all probate matters. From highly complex formal probates for large estates to smaller estates that may be able to make use of certain shortcuts and expedited processes, our team can help you make a difference.
There’s a lot at stake if you’re a personal representative. You want to ensure that the probate process goes as smoothly as possible and meets all obligations. As you are a fiduciary, the stakes are high here, and failure can lead to a legal case against you.
Additionally, a benefit of working with our team is that attorney Bobby King is a real estate agent. If it becomes necessary to sell property to distribute assets accordingly, he can help with that. But, perhaps the most important benefit of our services is the peace of mind that you will have. Ours are experienced attorneys who have the skills to efficiently and effectively move you and your family through this process.
How much does Probate cost?
There are some baked-in costs to probate, such as taxes and court fees, but the general cost of your case will depend on how long it takes and how difficult it becomes. Generally, the faster you can move through probate, the less it will cost you.
How long does it take?
In a perfect storm of variables that include going through summary probate, the probate process can take less than a month. However, that is hardly ever the case. On average, probate may take about six to nine months, but sometimes it can take years.
Can I avoid probate?
By utilizing trusts and other asset protection strategies, you may be able to minimize your probateable property. In some cases, if you are thorough enough, you may be able to avoid probate court altogether.
Are there assets that don’t have to go through probate?
Certain assets and property you have in a Lady Bird deed may allow you to avoid probate. Anything included in a trust – since the trust is not owned by you – would also avoid probate.
How are taxes and debts settled in probate?
The personal representative of the estate creates a list of all the creditors and assets of the estate. That person then works through the list, liquidating or utilizing available assets to clear off any debts.
Do life insurance payouts go through probate?
Generally speaking, no. An insurance policy has a beneficiary already named, so the payout from a life insurance policy would go directly to the heirs.
What if I live in a different state?
If you live in a different state, then your estate would be probated under the laws of that state. However, if you live in a different state but some of the assets of a loved one are in Florida, then you would need to proceed with probate under Florida law. In these cases, it may be more likely for you to pursue summary administration if the amount of Florida property is small enough or if you wait out the period of two years. It will always help to have a local Florida probate lawyer to work with who can keep you informed of what’s happening and how to address problems.
How is real estate handled in probate?
In many cases, real estate would go to the heirs of the estate. However, if – due to debts or intestacy – the house could not be equitably shared among heirs, then the only other option is liquidation. This is a regular occurrence, but it can be complex. Luckily, attorney King is a real estate agent and can assist if this becomes an issue in your case.
What happens when disputes arise?
If issues arise during probate, then the probate court will hear them. Probate disputes can be the most stressful and painful issues you can have before a court. Many people – and many families – suffer immensely during these disputes, leaving familial rifts that never quite heal.
Resources And Tools
Here are a few resources and tools for you to consider:
- Florida Probate State Code: The specifics of Florida probate law are not secrets. The laws are public, and you can take a look at them to get an idea of the complexity ahead.
- Probate court locations: Probate courts are found at the city and county levels; by using this site, you can find the most convenient court for your case.
These resources come from the state of Florida and have not been crafted by our team. However, if you have questions or concerns, our lawyers will be happy to answer them.
We’ve spoken a lot about the complexity of the probate process, but what is that, exactly? While every step is exceedingly complex, the steps themselves are distinct, and they go as follows below.
Initiating The Process
This means filing the paperwork with the probate court to begin proceedings. It can be done by a personal representative, a family member or anyone with a vested interest. It will require a death certificate and standing to begin the proceedings.
Normally, this will be the duty of the personal representative. They will spend most of their time researching and notifying creditors of the upcoming probate. They will take the lead on making sure that the creditors have adequate time to respond.
Paying Debts And Taxes
Once more, the personal representative will take the lead on this. They will have the information to pay all the debts accrued by the deceased and pay off the taxes assessed by the state.
Distributing Assets To Beneficiaries
Once all debts and taxes have been paid, the beneficiaries will receive the balance of the estate’s assets. This could be done through intestate distribution or according to a will. If there are any trusts or assets that go directly to beneficiaries, then this will be much faster.
Closing The Estate
The personal representative will offer all records and an accounting of their time working on the estate. This is a unique responsibility. In fact, everything that has to do with closing the estate and probate is a considerable responsibility. It is one you don’t want to do alone.