Probate Process

Loss of a loved one is a difficult time for family and friends.  We have helped guide many families through these times. We will help you from the start to the end of the probate process.    We will provide help you prioritize your tasks, organize the estate, and help you stay in compliance with our complex Florida probate laws.

When a person domiciled in Florida passes away with assets in their individual name and with no designated beneficiary, an estate needs to be open to manage the decedent’s affairs. This court process is called a probate administration. Probate involves identifying and marshaling the assets of the decedent, notifying the decedent’s beneficiaries and creditors of the decedent’s death, paying the decedent’s debts and expenses of administration, and ultimately distributing assets to the proper persons. Who inherits from the decedent depends on whether the decedent was survived by a spouse and/or minor child, and whether the decedent executed a valid last will and testament devising his assets. When the decedent does not have a last will and testament, they are said to have died intestate (meaning without a will) and their assets are distributed to the survivors as outlined in the Florida Statutes. It is a common misconception that the decedent’s assets will escheat (i.e., pass) to the state of Florida. However, the assets of a decedent will escheat to the state of Florida only when the decedent passes away with no last will and testament and no family members can inherit under Florida Statutes.

It is true that the probate administration process can be time-consuming and cumbersome, something that most people strive to avoid. However, the reality is that many people do not execute the proper lifetime estate planning documents necessary to avoid probate. So, for the decedents’ estates that are subject to probate, probate administration is an extremely important process that, except in very few and limited circumstances, must by law be managed by a qualified lawyer per Florida. Fla. Prob. R. 5.030 (a).

There are two “main” types of administration—formal administration and summary administration. The personal representative is a fiduciary who has duties and responsibilities to the beneficiaries as well as the creditors.

How long does the probate process take? In the best case scenario, estates not required to file a federal estate tax return close within five or six months, assuming that there is no litigation, such as a will contest, dispute between beneficiaries, or dispute with a creditor. For those estates required to file a federal estate tax return, the estate can typically not be closed until the closing letter is received from the IRS, which can be a lengthy process. When the decedent has passed away at least two years before the probate administration takes place, the process may be quicker. Furthermore, for more lengthy estates and depending on the facts, sometimes the Judge will authorize a partial distribution to beneficiaries while outstanding issues are being resolved.

So, why does it take so long? Although this is not an exhaustive list, here is a list of tasks that must be accomplished:

  • Identification, valuation and safeguard of assets.
  • Identification and notification of possible heirs and creditors.
  • Assessment of the validity of claims against the estate of the deceased.
  • Publication of all legally required notices.
  • Management/investment of assets and real estate.
  • Application to the court for authorization to liquidate and distribute assets to beneficiaries and creditors.
  • Filing and payment of federal and state income, estate, and gift tax returns.
  • Objection to the filing of improper claims.
  • Defense of lawsuits brought by creditors, if filed.
  • Payment of valid claims of creditors.
  • Employment of advisors and professionals to assist in administration.
  • Payment of administrative expenses.
  • Preparation of an inventory of assets and a formal accounting.
  • Distribution of statutory amounts (including exempt property) or assets to the surviving spouse or dependent family members.
  • Distribution of assets to beneficiaries.
  • Closure of probate administration.

All of the above steps are parts of a “formal” probate administration. Florida does provide some alternate procedures in certain limited situations (see below). “Summary” probate administration is generally available if the decedent died more than two (2) years ago or the assets of the decedent’s estate are less than $75,000.00, not including the decedent’s homestead property.

Our firm represents both personal representatives and beneficiaries of estates. As the personal representative, we ensure that you comply with the Florida Statutes and your fiduciary duties, as well as provide proper notice to the other interested parties. Although the fiduciary is obligated to retain counsel, all interested persons have a right to counsel. We represent beneficiaries of estates either when there is litigation or when a beneficiary just wants to ensure they understand the process and their rights. While the personal representative’s attorney has certain duties to beneficiaries, the attorney does not represent the beneficiaries and cannot be relied on for legal advice pertaining to the option(s) of the beneficiary.

Florida’s 3 three types of proceedings to transfer title of a decedent’s assets:

  1. No Probate: Disposition without Administration.

When Available:  This procedure can only be used for very small estates – less than the funeral bill or maximum of $6,000 in some counties. This process allows someone who paid for the person’s final expenses – the funeral and expenses of the last illness – to be reimbursed from the assets of the estate. Fla. Stat. 735.301. It can be used only when the deceased person did not leave any real estate, and the only assets are either exempt from creditors’ claims or do not exceed the amount of final expenses.

  1. Ancillary Probate Administration.

What is Florida Ancillary Probate Administration?

This is a legal proceeding that is available for a decedent who resided in a state outside of Florida at time of death, but who has property in Florida – usually real estate.   The Florida probate ancillary administration is the legal process required to transfer legal title for the Florida assets to the beneficiaries of the estate.

When Available: If the decedent has a will:     When the decedent has a will that is being probated in another state, the Personal Representative for the Estate (also called Executor in many states) may petition the Florida probate court  to admit the decedent’s foreign will in the county where the property is located.

Once the foreign will is admitted to record by order of a Florida court, the will shall be deemed as valid and effectual as if it were executed in Florida.   With the approval of the Florida probate court, the Personal Representative can either sell the property or distribute it outright to the beneficiaries. See F.S. 734.104.

If the decedent does not have a will:  In the situation where the decedent did not leave a will and there are probate proceedings in the state where the decedent died, the Personal Representative may petition the Florida court upon proof of certain pleadings from the domiciliary probate.

Time Frame:  The time to open and close a Florida probate ancillary administration depends on the type of proceeding needed.  The proceeding may be a Summary Administration for estates under $75,000 or where the decedent has been dead for more than two years.  Otherwise, the proceeding will be a Formal Administration.  For the time frame for each type of Administration see above.

  1. Summary Administration.

When Available:  Summary administration may be used for either a resident or non-resident decedent’s estate if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2). In a summary administration, no personal representative is appointed, so there is no one with authority to sign documents on behalf of the estate. Therefore, if the decedent died, for example, with real property that is not the decedent’s homestead, there is no one to execute a deed from the estate to the proper beneficiaries. Additionally, in a summary administration where the decedent has not been dead for at least two years, the petitioner is required to make a diligent search for any known or reasonably ascertainable creditors and make provision in the petition for payment to the creditors. Anyone who receives assets pursuant to an order of summary administration may be liable to creditors of the decedent until two years after the decedent’s date of death.

Note:  The “value” is the gross as opposed to the net value of the estate.  The value of the homestead is not included in the gross value.

Time Frame: 3-6 months for simple, uncontested administrations in most counties.  However, the time frame can vary according to the Florida County.

Attorney’s Fees: Summary Administrations are usually charged at the attorney’s hourly rate. After reviewing the will (if there is one), inventory, and death certificate, our Firm can give you a reasonable estimate of our fees.

  1. Formal Administration.

When Required:  This administration must be used if the decedent’s estate does not qualify for summary administration because the decedent’s estate exceeds $75,000 or the decedent has been dead for less than two years.   Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims.

Time Frame: 6-9 months if simple and not contested for most counties. However, the time frame can vary according to the Florida County.   More complex estates range from 9 months to 1 year or more.  If a Federal estate tax return (Form 706) is required additional time may be needed to close out all issues with the IRS.

Attorney’s Fees:  Florida law provides a presumptive statutory fee schedule based upon the value of probate assets.  It is as follows:

  • $100,000 – $1 million:  3%
  • Above $1 million-$3 million: 2.5%;
  • Above $3 million-$5 million: 2%.
  • Above $5 million – $10 million: 1.5%
  • Above $10 million:  1%

Additional fees may be charged at an hourly rate for extraordinary services, such as sale of real estate, preparation of a tax return, representing the estate if the will is contested, etc.  See F.S. 733.6171.

Personal Representative’s Powers and Duties:

The Personal Representative (or “PR”) is a fiduciary and is responsible – and liable – to the estate beneficiaries.  The PR is also the person responsible to the IRS for the decedent’s final income tax return, the Federal estate tax return if required, and any other tax returns required by the estate.

PR’s first duties are to make sure all properties and papers of the decedent are secure and to marshal all the assets.   Of course, the PR must strictly follow Florida law.  As noted above, as soon as possible after the decedent’s death, the PR must engage a Florida probate attorney unless the PR remains the sole interested person.

Personal Representative’s Fees: The fee rates for the PR are similar to, but not the same as, the attorney rates. See F.S. 733.617.

Six Critical Florida Probate Deadlines

  1. Deposit Will: 10 days after death to Clerk of Court in County of Decedent’s Residence.
  2. Filing Probate Inventory: 60 days after issuance of Letters of Administration.
  3. Creditor Deadline For Filing Claim Against Estate: On or before the later of the date of three months after the first date of publication or thirty days after service of Notice Of Creditors for known creditors. F.S. 733.702(1).  If there is no publication or service of the Notice of Creditors, then the deadline is two years from the date of death.   Note: Formal Administration requires publication of Notice of Creditors.
  4. Personal Representative (PR) Deadline for Objecting to a Claim: The PR may object to a claim at any time within the later of four months from first publication of the notice of creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). If the PR fails to object within this time period, the claim is deemed allowed.
  5. Statute Of Limitations For Claims Against Either An Administered Or Unadministered Estate: Two years from date of death, except for any IRS claims.
  6. Surviving Spouse Homestead Election: 6 months from decedent’s death to opt-out of life estate in homestead and take 50% interest.
  7. See discussion on homestead below.

Homestead Discussion:

First, identify if the decedent had a Florida homestead. If the decedent lived in Florida and had Florida real estate the possibility of homestead issues must be analyzed. If the decedent split time living in Florida and another state, you must first determine the state of domicile, as only a Florida resident can claim homestead. If the decedent is survived by a spouse or minor child (a minor is any child under 18), Florida homestead law will trump anything written in the decedent’s will or trust. The surviving spouse is given a life estate and the minor child a remainder interest.  See F.S. §732.401.

Homestead is not considered part of the probate estate, but the personal representative may have the responsibility to preserve, insure and protect it. See F.S. 733.608(2). If there is any question regarding whether the property is homestead or if the decedent has creditors, the Homestead Petition should be filed since homestead passes to qualified heirs free of claims against the estate.

Note: New legislative changes to F.S. §732.401 allow the surviving spouse to opt-out of the life estate, and instead elect to take a 50% tenancy-in-common interest in the property.

Special Note: The information in this legal service section is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult Thomas-McDonald Law Firm. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.