Supporting Loved Ones With What Has Been Left Behind
Simplifying The Legal & Administrative Process Of Probate
If you are here to learn Florida probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Florida is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in all across Florida is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor/Personal Representative” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as directed by the will—or by the state law if there is no will
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
Do you know what would happen to you, your loved ones, or your money – if something unexpected happened to you? If you don’t have a current will in place, the state of Florida has a plan for you and it probably isn’t what you or your family want. Even if you have a will, it still may not be enough to keep your family or your assets out of court and conflict.
When someone dies, they are either intestate (meaning they do not have a Last Will & Testament) or testate (in which case they do have a Will). In either situation, their estate must go through probate. During probate, there is a specific procedure to determine if a Will is valid and if no Will is present the courts will determine the allocation of assets.
Typically, the process of probate causes conflict between loved ones because it is expensive, timely and open to the public. However, there are ways through estate planning that can avoid the probate process.
Frequently Asked Probate Questions
The job of a Florida probate attorney is to guide the personal representative (also sometimes described as the executor or administrator) through administration of the estate, helping ensure that all technical requirements are met and that the personal representative understands and has the information necessary to carry out his or her responsibilities.
The cost to hire a Florida probate attorney depends on the type of administration, the size of the estate, and whether there are any out-of-the-ordinary issues to be addressed in the probate process.
Florida law allows for the payment of “reasonable compensation,” and sets forth a table of fees that will be presumed to be reasonable. These start at a $1,500 flat fee for estates valued at $40,000 or less and shift to a percentage-based formula for estates valued at more than $100,000.
However, the attorney and personal representative may agree to a different method of determining fees, so long as the method is reasonable and no interested party objects. And, services that fall outside the normal administration of an estate may result in additional fees. Our team will be able to provide more specific information about the likely fees associated with an estate matter like yours.
How long probate takes varies depending on the type of administration and the complexity of the estate. The probate process always takes more than three months, because creditors are allowed 90 days to submit claims. A summary administration—that is, a small estate that is administered informally—may often be completed in four to six months. However, formal administration typically takes several months, and often more than a year. In a particularly complex administration or where issues such as will contests and contests over valuation of property arise, the matter can stretch out for two years or more.
In most Florida probate cases, the Florida Rules of Civil Procedure require that the personal representative be represented by an attorney. This requirement is to the advantage of both the personal representative and the beneficiaries, since the probate process can be daunting and confusing. There are some limited exceptions, such as for estates in which the personal representative is the sole beneficiary. However, it is generally in the personal representative’s best interest to hire a probate attorney even when one is not required, as small mistakes can create serious complications.
Beneficiaries typically do not need their own probate attorneys, but may choose to hire one if conflicts arise or they have reason to believe that the personal representative is acting dishonestly or is not fulfilling his or her responsibilities.
In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, family members’ of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
It’s why we do things so much differently than most other lawyers and law firms, here at de Jesus Law Group.
Yes. In fact, costs of administering the estate are the number one priority under Florida law, meaning that they are paid before any other debts or obligations of the estate, and before any assets are distributed to heirs or beneficiaries.
Generally, the probate process is required to legally transfer property of the estate to beneficiaries. Under certain limited circumstances, though, Florida law allows for “disposition without administration.” This type of disposition is available only when the estate consists solely of personal property that falls within specific limits and the property is being release to the person who paid funeral expenses and medical expenses in the 60 days preceding the death.
Probate may also be avoided when the deceased made other provisions for all property to be transferred, such as placing everything he or she owned into a living trust so that there is no property belonging to the estate.
Florida law sets forth the order of priority for payment of estate obligations and distribution of assets, and there are quite a few expenses and other obligations to be paid before heirs and beneficiaries. Top priority goes to costs of administration and compensation to the personal representative and his or her attorney—in other words, the actual costs of getting the estate settled.
Funeral and burial expenses come next, followed by debts of the estate, which are broken out into several levels of priority.
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.