The probate process refers to court proceedings that you have to go through when a loved one passes on, and they have left an asset in their name. You might have to go through the probate process as an estate creditor, an heir to estate property, a representative for the deceased if they passed on without a will. You might also be appointed in the deceased's last will. It's essential to understand the probate process in Florida since it can help you establish a perfect estate plan for yourself. The process helps in the identification and distribution of assets left, to the beneficiaries listed in the will.
Types of Probate
In Florida, there are three types of probate; disposition without administration, summary administration, and formal administration. Here is a description of the three types of probate:
You will go through the summary administration process if the deceased passed on over two years ago or when the assets are valued to be less than $75,000. The probate process can be administered quickly, although probate lawyers do not prefer taking the option, especially when the deceased passed on less than two years ago, the reason being that the claims of all creditors of the dead would be barred after the duration. Your attorney should notify all the deceased person's creditors, and this would be considered to be a formal administrative process that lacks the notice requirements.
To begin the process, those listed in the will or the person named as the executor should file a Petition for Summary Administration petition document. All beneficiaries should sign the petition, and if they are unaware, you should give them a written notice. Before you sign the petition, you must note down the beneficiaries who will inherit the property, the available assets along with their value. In the summary of the administration case, a court won't appoint an administrator or an executor, but instead, the court will issue an order that releases property to the beneficiaries.
A probate attorney might advise you to go for Formal Administration if the property exceeds $75,000 or when the death occurred less than two years ago. Also, if all the assets were included in a trust or will, then a formal administration would be a viable option that will eliminate claims made by creditors. If you have a simple case, it could last up to 9 months; however, for more complex cases, the final decision could be made in a year. Besides, if the situation requires Form 706, then you will spend more time clearing matters with the IRS.
Disposition Without Administration
The process skips the probate hearing due to some circumstances. Disposition without administration would be a viable choice if the deceased never left any real estate and when the value of assets left behind by the dead is less than the cost that you will incur during the probate process. Considering that there won't be any court hearings, the beneficiaries should file a Disposition of Personal Property without Administration form, to aid in the recovery of assets.
Whether There is a Will
If the decedent left behind a will in the testate estate, then, the provisions of the decree will determine the distribution of assets. However, if the decedent never left a will, the property would be considered to be an intestate estate. As a result, the Florida intestate succession provisions will determine how the recovered assets will be distributed among the successors.
A volunteer, family member, or a spouse could be appointed as the personal representative who oversees the distribution of wealth left behind by the decedent. As a Florida probate lawyer explained, some families prefer one of the members to manage the probate of the estate, although a proper lawyer could help them with the process. A reasonable attorney utilizes a combination of real estate law, estate planning strategies, corporate formation, family law, and asset structuring to ensure that all beneficiaries are protected from litigation, creditors, and other threats that may be looming.
Stages of the Florida Probate Process
Family Members Meet a Florida Probate Attorney
Those stated in the decedents will organize a meeting with a Florida probate lawyer. During the meeting, you should present all relevant documentation such as the list of owed debts, life insurance policies, financial statements, real estate title deeds, and the last will.
File the Petition
The litigation process would be instituted by a personal representative stated in the will who will validate the distribution of assets. If there is no will, you can settle for a probate lawyer who mediates the process, or you could petition a Florida court of law to petition someone to be an executor. It would be best to file the petition in the Florida country where the decent owned property. Once the court approves the estate representative, the Letters of Administration would be issued as evidence of legal authority to act as the mediator. The representative will be tasked with covering all costs incurred when administering the estate; they will pay state taxes, funeral costs, and creditor claims on behalf of the descent. Besides, they will offer notices to creditors and beneficiaries, they will identify worthy beneficiaries, heirs, and creditors, and finally, they are tasked with closing the probate estate.
Issue Notices to all Beneficiaries and Creditors
The personal representative is tasked with notifying all beneficiaries of trust estates, the surviving spouse, and all parties that have the rights of inheritance. Besides, in some states, the probate proceedings will require you to publish notices in newspapers. Once issuing notices are done, the personal representative proceeds with filing the documented proof. All Florida states allow family members to contest the appointment of the personal representative or the will on the grounds of duress, fraud, undue influence, or improper execution.
Seek Letter of Administration from Court
As the family members proceed with the probate case, they must receive an open estate account and administration letters from the court. Once the personal representative collects the letter, they can proceed to the bank where they can open the estate account. Estate accounts are ideal for depositing estate assets that are subjected to probate. All statements and assets that were in the deceased name will be liquidated and sold if there is a need. Proceeds obtained from the sale of property are kept in the estate account and will, later on, be distributed.
Settlement of Expenses, Taxes, and Estate Debts
Under Florida Law, the decedent's debts must be settled before successors inherit the property. The personal representative who was tasked with identifying legitimate bets should prepare a final income tax report and all withstanding tax areas. Inheritance of wealth will only take place if the assets can cover the decedent's debts such as HOA fees, credit cards, city violations, evaded taxes, and mortgages. You should know that not all assets are eligible for succession and that the law will divide the decedent's assets into exempt and non-exempt groups. The exempt assets cannot be used for covering debts while the non-exempt assets will be liquidated to cover debts. However, life insurance policies and retirement savings will be distributed to heirs despite the debts owed. Besides, in some states, they will designate some exempt property to cover the debt cost; therefore, it would be wise to verify the laws in your state.
Creditors have a time limit stipulated by the law, where they can make a claim. The period varies between states, and if you live in Florida, the creditors are given a three months duration to apply from the time the notice was served. The family representative is legally obligated to challenge claims once the creditors present them.
Conduct an Estate Account
The personal representative will then conduct a final account of the remaining estate and reveal the findings to all beneficiaries. The definitive account should include the fees paid to the personal representative, probate costs, cost of assets, and the charges incurred when settling debts. A family representative should act in the family's best interest, failure to which, beneficiaries would be entitled to filing a lawsuit.
Once all the creditor claims have been settled, and there are no petitions, the personal representative requests the court to transfer all assets to successors in compliance with local laws or the provisions of the will. A Florida court then issues an order to move the assets. If there were real estate properties, the personal representative would be tasked with creating new title deeds, or they might have to liquidate the property and distribute the proceeds to the beneficiaries.
However, suppose both spouses held the title to real property in the form of communal property, joint tenancy, or the tenants in the entirety. In that case, the property will be transferred without the need for probate. In the situation where the surviving spouse wasn't named in the title deed, then the will determines how property will be distributed. On the other hand, if there is no will, the internal succession laws will be used in determining the parties that are entitled to receive a share of the property.
Finalizing the Probate Estate Case
It's a legal requirement that the personal representative formally closes the estate. The closing process includes the payment made to creditors and distribution of assets, the execution preparing a final distribution document and the executor will file a closing affidavit that ascertains that the assets were adequately distributed to all successors.
Other Probate Considerations in Florida
Appearing Before the Court
The party appointed to be the personal representative is not under obligation to attend probate proceedings in court since the necessary documents can be filed with the help of a probate lawyer. The personal representative might, however, be required to attend the proceeding to issue testimonies or in scenarios where there is a dispute that would time to settle.
Florida Business Assets
If the deceased had properties in Florida, the chances are high that feuds will occur between business partners and heirs over the beneficiaries of the business, or conflicts in business aspects such as intellectual property rights, or the distribution of shares. Regardless of whether the decedent left behind a will or not, you should expect such disputes. The situation can be volatile, and it's always advisable to involve a probate attorney who will fight to see the rightful owners receive their fair share.
Estates that Lack a Will
In Florida, when the decedent doesn't leave a will, the estate is referred to as an in intestate. If they left a will, it would be considered an intestate estate. The intestate estates often create complications among interested parties. In such cases, Florida's intestate estate laws give preference to close heirs and surviving spouses as personal representatives who will mediate the process.
Limitations in the Florida Probate Process
The law has its flaws, and despite your need to seek justice, there are limitations to the Florida Probate process that you should be aware of. The law requires that personal representatives should be appointed within given time duration and that lawsuits should be filed within a given deadline. Generally, personal representatives won't be held liable if a party files a claim two years after the deceased passes on in Florida. Besides, the beneficiaries have a right not to pay creditors if they file their claim three months after they were served with notices.
Probate cases in Florida can be complicated in some cases; families end up fighting over a property without establishing a solution. Probate cases are also different, and they offer unique challenges, but with the help of an experienced attorney, you can be confident of having a fair share of the property. With this in mind, the above information covers most of the aspects that go on in Florida probate courts, and they will provide you with the right foundation to enable you to seek justice, and you know what to expect in the process.
WRITTEN BYBrand Voices