Probate is the court-supervised process for identifying and gathering a deceased person’s (decedent’s) probate assets, paying decedent’s debts, and distributing decedent’s remaining probate assets to his or her beneficiaries. If you die with a Will that is valid under Florida law, that Will may be admitted to probate, with your probate assets being distributed according to your Will. If you die without a Will (“intestate”), Florida intestacy statutes govern how your probate assets are distributed at your death.
Your personal representative has a legal duty to administer your probate estate pursuant to Florida law and the terms of your Will admitted to probate (or pursuant to Florida intestacy statutes, if you die without a Will). A personal representative can be an individual, or certain banks or trust companies. An individual personal representative must be at least 18 years old, mentally and physically able to perform the duties, not a convicted felony, and either a Florida resident, or closely related to the decedent if the individual is a non-resident of Florida.
In Florida, there are two types of probate:
- Formal administration: probate assets (not exempt from creditors’ claims) having a total value of more than $75,000; and
- Summary administration: probate assets (not exempt from creditors’ claims) having a total value of not more than $75,000
Generally, there are three phases of formal administration: identifying and marshalling probate assets; creditors’ claims period; and distribution of decedent’s remaining probate assets to decedent’s beneficiaries. How long a probate lasts depends on the facts of each situation. At a minimum, even simple formal administration must be open for at least the three (3) month creditor period. An estate which does not have to file a federal estate tax return must file its final accounting and other documents needed to close the probate estate within twelve (12) months after Letters of Administration are issued to the personal representative, and may be extended if needed.
Probate assets (that is, property subject to probate administration) are those assets owned in decedent’s sole name at decedent’s death; owned by decedent (at decedent’s death) jointly with one or more co-owners if the ownership did not provide for automatic succession of ownership (e.g., right of survivorship) at death; or assets payable to a decedent’s estate through a beneficiary designation. The following are not probate assets:
- Property titled in the name of decedent’s revocable living trust;
- A life insurance policy, annuity contract, or individual retirement plan that is payable to a beneficiary (other than decedent’s estate) pursuant to a beneficiary designation;
- Property owned jointly with one or more co-owners, with a right of survivorship (e.g., tenants by the entirety; or joint tenants with right of survivorship); and
- Florida “protected homestead” (if it qualified as exempted from forced sale during the decedent’s lifetime, and is devised (passing by Will) or descends (passing by intestacy) to decedent’s heirs). Homestead considerations for creditor protection, taxes, or devise or descent can be complicated legal issues dependent on particular facts.
If you need help with the probate administration of a decedent’s estate, please contact our office to set up an appointment.