What Is Probate?
Probate is the legal process through which courts identify, organize and distribute the estate of a deceased person (called the decedent). Once the decedent’s assets are gathered, the courts may order the sale of some assets, using the proceeds to cover the cost of probate itself and settle the decedent’s outstanding debts. Once these have been paid, the remainder is distributed to the decedent’s beneficiaries according to the instructions laid out in the decedent's will. If the decedent did not leave a will, then the remaining assets will be distributed according to state laws, rules and guidelines.
What Is the Purpose of Probate?
The probate process fulfills two essential objectives:
- To wrap up any remaining financial obligations left by the deceased (i.e., taxes and debts); and
- To ensure that all remaining assets go to qualified rightful heirs and beneficiaries.
If the decedent left a valid will, the will dictates the asset distribution. If no valid will exists, the court distributes the assets according to Florida law.
Which Assets Must Go through Probate?
The probate process applies generally to any asset that the decedent owned solely or co-owned at the time of death, unless there was a provision made for automatic transfer of ownership of that property. For example, a piece of real estate titled only in the decedent’s name classifies as a probate asset. Conversely, if additional persons are named on the title, and the title includes right to survivorship, then that property transfers automatically and won’t need to go through probate. Likewise, solely owned bank accounts go through probate, but joint accounts with a payable-on-death provision usually do not.
Additionally, under Florida law, any property wholly and jointly owned by husband and wife transfers automatically to the surviving spouse when the other dies.
What Happens If a Person Dies without a Will?
If someone dies without a will, she is said, in legalese, to die "intestate." When that occurs, Florida law establishes a basic hierarchy of succession to distribute that person's assets. Generally speaking, assets pass to successors in this order:
- The surviving spouse
- The descendants of the deceased (if there is no spouse), divided equally
- The decedent’s surviving parents (if there are no spouse or descendants)
- The decedent’s siblings (if no parents are living)
- Other remote heirs (if none of the relatives mentioned above are living)
Florida law also details specific instructions for combinations of the circumstances. For example, if lawful descendants died before the deceased, their share of the estate passes to any surviving grandchildren. If the surviving spouse has children with the decedent and from another relationship, the estate will be distributed half to the current spouse and the other half divided among the decedent’s direct descendants.
Finally, Florida intestate laws include different distribution requirements for certain assets like homestead property or exempt personal property.
Under Florida law, the state takes ownership of the decedent’s property only if the decedent had no legal heirs, but that is almost never the case.
How and Where Are Probate Proceedings Initiated?
Proceedings begin by filing required documents and paying a filing fee with the clerk of the circuit court—typically in the county where the deceased resided at time of death. This required paperwork includes the decedent’s will (if one existed) and other documentation.
At that point, the clerk assigns a file number to begin the probate process. Any additional paperwork and all records of proceedings will go into this file.
What Is a Personal Representative, and What Is the Representative’s Role?
“Personal representative” is Florida’s version of the estate “executor” (or “administrator”) as named in other states. Once appointed and charged by the circuit judge, the personal representative has the legal duty to administer the decedent’s probate estate according to Florida law.
In fulfilling the obligations of this role, the personal representative does the following:
- Identify, gather, organize and appraise the decedent’s assets in probate
- Provide proper safeguard protections for these assets until their distribution
- Preparing a “Notice of Administration,” detailing procedures of the estate's administration and the process for filing any objections or disputes
- Publish a “Notice to Creditors” in a local newspaper, so potential claimants may file claims on the estate according to the law
- Perform due diligence in identifying and contacting creditors, and notifying the creditors of the time limit for filing claims
- Pay any/all valid claims from the proceeds of the estate
- Object to and defend any invalid claims, including any lawsuits filed to that effect
- As necessary, hire appropriate professionals to assist in the administration of the estate (e.g., attorneys, CPAs, appraisers, etc.)
- File tax returns and pay taxes due on the estate
- Pay all expenses incurred in the estate's administration (including probate costs and other court fees)
- Distribute remaining assets to the beneficiaries, including statutory amounts to the surviving spouse/family
Probate can be a lengthy, demanding process, and the role of personal representative carries a weighty obligation throughout it. If a personal representative mismanages the estate in some way, he may be legally liable for his wrongdoing.
What Are the Qualifications of a Personal Representative?
The personal representative may be an individual, a bank or a trust company incorporated under Florida law. For someone to qualify as a personal representative, an individual must be at least 18 years old with no felony convictions. Additionally, the personal representative must be either:
- A spouse or close relative of the decedent; AND/OR
- A legal resident of the State of Florida.
If a named personal representative is not a spouse, sibling, child, parent or other close relative of the decedent, this person must be a legal resident of Florida to qualify as a personal representative.
Additionally, a court has the right to disqualify anyone deemed mentally or physically unable to perform the required duties of this role.
How Does the Judge Appoint a Personal Representative?
The judge presiding over a probate case begins with the will, if it exists. If the decedent named a personal representative in the will, the judge will honor that wish, provided the person or institution meets the legal qualifications.
If there is no will, or if the named personal representative does not qualify, the next right of appointment falls to the surviving spouse.
If the decedent was not married, or the spouse does not want the appointment, the right falls to the person or institution selected by the majority of the heirs (that is, having more than half the votes of people who stand to gain from the estate). If there is no majority in interest, the judge holds a hearing and appoints a personal representative based on the evidence presented.
Should the Personal Representative Have an Attorney, and Why?
The personal representative carries a serious legal obligation in fulfilling the administration of the estate, and breaching that duty—intentionally or unintentionally—can violate state law. Even simple probate cases often encounter legal issues or questions that would be unfamiliar to anyone who didn’t study law. Therefore, a personal representative should always hire a qualified attorney to provide legal advice and representation during probate proceedings. To be clear, this attorney represents only the personal representative—not the beneficiaries or the estate as a whole.
How Is the Estate Required to Pay Creditors?
In probate, the decedent’s debtors have top priority and will be paid before the heirs receive anything.
The personal representative must perform due diligence in giving actual notice to all creditors who are “known or reasonably ascertainable.” These creditors must file a claim with the court clerk within three months of receiving notice. If the personal representative or other interested parties have reason to doubt a claim's validity, they may file an objection. At that point, the creditor may opt to file suit.
Payment of estate debts is a serious matter in probate proceedings. The estate may not be divided among the heirs until after all creditor claims have either been paid or deemed invalid.
How Is Compensation Determined for the Personal Representative and Associated Professionals?
Florida law entitles personal representatives, attorneys, accountants and other professionals to be reasonably compensated for their work in the probate administration. This compensation is paid by the decedent’s probate estate.
The amount of payment for the personal representative may be determined in any of the following ways:
- By an amount specified in the will itself
- By a contract between the decedent and the personal representative
- By agreement between the personal representative and interested heirs whose inheritance may be affected
- By the judge's determination
- As calculated under Florida law
Payment for the personal representative’s attorney may be determined by any of the following:
- By agreement among the personal representative, the attorney and heirs who will be affected by the fee
- By judge's determination
- As calculated under Florida law
What Is the Expected Time Frame for Probate to Complete?
Every probate administration is different, and the time it takes to process can vary widely. The rule of thumb is that the simplest probate cases may be settled within approximately 5-6 months, and—if the estate doesn’t have to file a federal tax return—the final accounting and closing documents are due to the courts within 12 months.
However, depending on the circumstances, this due date can and will be extended. Some factors that can lengthen probate include:
- Liquidating real property as part of settling the estate (because the courts don’t control the real estate sales market)
- A disputed claim by a creditor and/or a resulting lawsuit
- One or more legal challenges to the will's validity
- Unanticipated delays in filing tax returns
What Rights to the Estate Do Surviving Family Members Have?
Florida law contains provisions to protect the decedent’s surviving spouse and certain surviving children from total disinheritance—even if the will gives them nothing.
Under these statutory rights, the surviving spouse and children may receive some of the assets, whether or not the will specifically grants them any property. Examples of these rights might include the following:
- A surviving spouse may have a legal right to a portion of the decedent’s homestead property.
- A surviving spouse may claim an “elective share” (roughly 30 percent) of all the decedent’s assets, including assets not in probate.
- A surviving spouse and children may claim the right to a family allowance that takes precedence over the final distribution of assets
- If the decedent married and/or had children after the last iteration of the will and neglected to name them, the omitted spouse or children may still be entitled to a share of the estate.
An important caveat: Pre-marital or post-marital agreements can waive any right to these statutory provisions.
Are there Any Alternatives to the Formal Probate Administration Process that May Reduce the Time Frame and/or Cost of Probate?
Florida has several abbreviated procedures that may speed up probate's process or reduce its cost. Two common alternatives are listed below.
Summary Administration is a streamlined process that enables smaller estates to move through probate more quickly and affordably. The process appoints no personal representative, and the courts distribute assets to beneficiaries and creditors by orders once the petition is approved. For an estate to qualify for summary administration, one of the following must be true:
- The estate's total value—minus property exempt from creditors' claims—is less than $75,000; OR
- The decedent has been dead for more than two years.
An important note: Under summary administration, recipients of estate assets may be liable for claims against the estate for up to two years.
Disposition Without Administration
Probate estates may be eligible for this alternative under the following conditions:
- The estate's assets consist solely of property legally exempt from the creditor's claims; AND/OR
- The value of any non-exempt property does not exceed the total cost of funeral expenses and reasonable and necessary medical expenses during the last 60 days of the decedent’s final illness (if applicable).