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Specifics on probate

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What is ``probate``?

Probate is a court-supervised process for identifying and gathering assets of a deceased person (often known as the “decedent”) in order to wind up the affairs of the decedent, such as paying the decedent’s debts and distributing the decedent’s asset to his or her beneficiaries.

What is involved in the probate process?

Rules governing probate

The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes and the rules governing Florida probate proceedings are found in the Florida Probate rules, Part I and Part II (Rules 5.010-5.530).

Types of administration

The two most common types of probate administration under Florida law are formal administration and summary administration.

Summary administration, in short, is administration by the probate court where there is less than $75,000 in assets in the probate estate and there are no creditors’ claims against the estate.

All other amounts of property are conducted in formal administration (assuming the property is in Florida.

Where is probate administration conducted?

Probate estates are administered in the probate division of the circuit civil court generally in the county where the decedent was domiciled at the time of death.

How long does the probate process take?

Probate can last anywhere from a few months to a few years, depending on the nature of the assets, the claims against the estate, and whether there are any contests to the administration and/or distribution of the estate.

Probate assets

Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Fortunately for family, Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property and the right to come forward to claim an “elective share” from the decedent’s probate estate. Generally, the spouse is entitled to 30% of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the estate.

Who administers the estate?

While the circuit court judge presides over probate proceedings, a personal representative (also known as “executor, executrix, administrator and administratix) is appointed to oversee the affairs of the estate. The personal representative is charged with the legal duty to: identify, gather and safeguard the probate assets, alert potential creditors by publishing a “Notice to Creditors” in a local newspaper; publish a “Notice of Administration” to provide information about the probate estate and procedures to be followed by those having objections to the administration of the decedent’s assets; object to and pay creditors’ claims; file tax returns and pay any taxes due; employ professionals to assist in the administration of the estate, such as attorneys or accountants; distribute the assets of the estate pursuant to a valid will or by law; and close the probate estate, among other things.

Who can serve as personal representative?

A personal representative of an estate can be an individual or a bank or trust company, subject to certain restrictions.

To qualify to serve as a personal representative, an individual must either be a Florida resident or, regardless of residence, a spouse, sibling, child, parent, or other close relative of the decedent. An individual who is not a resident of Florida and who is not closely related to the decedent may not serve as a personal representative.

Usually, an individual is named in the decedent’s will to serve as personal representative, so long as the named person or bank or trust company is legally qualified to serve.

If there is no valid will, the surviving spouse has first rights to serve as personal representative. If there is no surviving spouse, or if the decedent’s spouse is incapable of or declines to serving as personal representative, then the person or institution selected by a majority in interest of the decedent’s heirs will have second right to be appointed as personal representative. If the heirs do not agree, the court will appoint a representative and a hearing will be held for that purpose.

It is highly recommended that the personal representative hire a qualified attorney to assist in the administration of the estate. Many legal issues arise, even in the simplest situations.

Do I need to pay my loved one’s bills?

Not necessarily. After a person has passed away, creditors continue to send bulls, whether or not they have been advised of the person’s death.

Many times, creditors put pressure on family members to make payments on behalf of the deceased person, but rarely is there a legal basis for pushing a family member to pay. Except for absolutely necessary bills (i.e., mortgage payments, utilities), or unless you are a co-signer on a credit account, the creditors need to file formal claims for payment in the probate case. Payment for those debts would come from the decedent’s assets and there is a procedure for asking the probate estate judge to authorize payment of those bills.

If you advanced funeral expenses for your loved one, it is your right to be reimbursed from the estate assets.

In addition, there is a procedure for objecting to claims of creditors if you feel they are unjust or should not be paid. Also, many of these debts can be negotiated to save the estate money.

What are the first things I should do if a loved on passes?

Aside from the obvious matter of advising and comforting the living and making the preparations for a funeral, the first thing to do for the estate is to focus on preventing losses.

Securing the decedent’s home from damage or theft is an important first step (for example, does the housekeeper have a key?). Another important task is assembling of information and documents, to get the complete picture of the decedent’s estate.

Did the decedent have a pre-paid funeral plan? Did the decedent have life insurance? A safe deposit box at a bank? A last will and testament? Stocks and bonds? Any executed Power-of-Attorney forms that could potentially be misused?

If you have any fear that documents or possessions may be stolen from the decedent’s home, you may take an inventory (with witness present, or using a video camera) to preserve information about what personal property and documents are in the home.

There is also a process for requesting that the court give you an emergency hearing, and a judge may enter an Order restricting entry into the premises. Also, don’t forget that the police may be called if there is an actual burglary taking place!

I’m almost certain that my deceased loved one had a will, but no one can find it!

This is a fairly common occurrence. Many people go through the trouble of drafting a Last Will and Testament, but then they put it in a “safe place” where no one can find it. There is a legal process to allow probate of a photocopy of a Will where a witness to its signing swears that it is a true and correct copy of the original Will. Or, the court-appointed personal representative of the estate may go to each bank where the decedent may have done business and inquire as to whether there is a safe deposit box under the name of the decedent.

Of course, if no Will can be found, then the court will be at a loss to apply the desires of the person who wrote the lost instrument. Florida law has specific legislation (Florida Statute Sec. 732.101-732.103) as to how a deceased person’s assets are distributed to heirs when the decedent left no Last Will and Testamant.

Are there alternatives to probate?

Probate administration and, potentially, litigation, can be very expensive and time consuming. The larger and more complex the estate, the longer it takes to administer the estate resulting in higher legal fees.

There are several ways to avoid probate. However, the avenues to do so all have one thing in common – assets are arranged so that there is nothing in the decedent’s name at the time of death. For instance, joint tenancies, life estates in property, beneficiary designations (i.e., payable-on-death or transfer-on-death), and living trusts.

Assets in the categories listed above are not considered to be probate assets and automatically transfer ownership by operation of law upon the passing of the decedent. If all of the decedent’s assets are non-probate assets, the entire estate would pass automatically to the designated beneficiary.

However, these techniques to avoid probate have their challenges, including tax consequences and limiting control of the asset (i.e., a home in the name of joint tenants would require consent of both tenants/owners to sell the property in the event the property would need to be sold for emergency funds).

Trusts are also a common and effective way of avoiding probate. A trust is an agreement in which a party holds property for the benefit of someone else. There are a few parties involved in the creation of a trust:

  • Grantor (also known as “settlor”) – the grantor is the person that creates the trust and the person that transfers the assets or trust property (the “res” or “corpus”) to the trustee to place into the trust;
  • Trustee – the trustee holds legal title to the property placed in trust.  The trustee is also a fiduciary in that he or she is responsible for using the trust property solely for the benefit of the beneficiary(ies);
  • Beneficiary – the beneficiary is the person who has beneficial title to the property and has the true interest in the property.

While this agreement should be in writing, it is not entirely necessary. The writing would outline responsibilities of each party and would also include the benefits the beneficiary(ies) is/are entitled to.

Make an appointment with us for a consultation to further discuss your situation and options when it comes to an estate plan.

What are your rates?

While fees are certainly an important topic when it comes to hiring the services of an attorney, we highly recommend making an appointment to discuss your case whereupon we would be able to provide you with a better understanding of our fee structure tailored to your case. The Florida Bar gives attorneys guidelines to use to determine the fees they charge in a particular case. Some of the factors include, but are not limited to, time and labor required, type and complexity of the case, comparable rates of other local attorneys, whether the fee is fixed or contingent, and whether the nature of the case is such that it would preclude the attorney from obtaining other work, among other things. Notwithstanding, it is our goal to provide our clients with the highest amount of value for their hard earned dollar. Therefore, it is important that you schedule an appointment with our attorneys to discuss your case so that we can tailor a plan specifically for your needs and circumstances.