Closing an estate according to a deceased loved one’s wishes is a high honor. However, it involves extensive paperwork and careful compliance with the law. Survivors who are mourning a loss often find themselves overwhelmed, but plenty of help is available.
Understanding the Florida Probate and Trust Administration
Probate is a legal process that wraps up the financial affairs of deceased people. In most wills, a trusted relative or friend is appointed as personal representative of the decedent’s estate.
If you are such a representative, your job is to identify the decedent’s assets and distribute them to heirs or beneficiaries named in the will. Probate court supervises this process. It is necessary because a will itself isn’t enough to pass ownership to the beneficiaries.
If the decedent left a trust, you may have been named successor trustee. That means you’re responsible for filing a notice of trust with the court, taking an inventory of the assets, liquidating assets if necessary, paying final bills, and transferring the remaining assets to the beneficiaries named in the trust.
Common Delays and Legal Hurdles
Probate and trust administration take time.
Probates must remain open for three months to allow creditors to present claims against the estate. Probates lasting five to six months are not uncommon. The probate process may last anywhere from 6 months to up to a year.
In addition, there may be delays in gathering the paperwork, inventorying the assets and tracking down the beneficiaries. Personal representatives often have to sell off real estate, resolve disputes with creditors or file federal estate tax returns. They must sometimes contend with legal challenges to a will.
An experienced Florida probate attorney can help you navigate the hurdles and expedite the process.
Successor trustees may find that it’s tough to please everyone.
The owner of a trust is known as the settlor. If a settlor becomes unable to manage the trust, Florida law typically gives the successor trustee absolute discretion to use the assets in the best interest of the settlor.
For instance, the trustee may transfer assets out of the trust in order to protect them. Beneficiaries might question such a decision later on when the settlor dies.
Trustees must also identify and pay estate expenses. If an expense is not trust-related, paying it from the trust may raise questions.
For sensitive issues like those, documentation is critical. Trust mismanagement, even if it’s unintentional, could result in legal liability.
Successor trustees are strongly advised to hire qualified legal and financial counsel.
Florida Probate Checklist
There’s a lengthy to-do list for personal representatives. Here’s a step-by-step guide on how to proceed before, during and after probate:
- Locate the last will and testament along with any amendments. If you can’t find the original, contact the decedent’s family members or the estate attorney.
- Request around 10 certified copies of the death certificate from the Florida Department of Health or the funeral home.
- Gather important documents. If you must retrieve items from a safe-deposit box, get clearance from a probate official or attorney. These are examples of documents to look for:
- Bank or brokerage account statements
- Property deeds
- Life insurance policies
- The last three years’ tax returns
- Records of any entities the decedent owned or co-owned such as a small business
- Funeral instructions or the funeral invoice
- Letters of instruction for personal property like jewelry, cars or works of art
- Secure the decedent’s property and assets.
- If you’re authorized, close or freeze all financial accounts.
- Create a detailed list of assets and debts. Everything from cash left in a wallet to real estate must be inventoried. For each item, note the value and location. List all financial account information with passwords if applicable.
- List all liabilities such as mortgages, credit card balances and medical bills.
- At this point, decide whether you can avoid a drawn-out probate process. If the estate is small enough, you may be able to request summary administration, a simpler version of formal probate. Summary administration requires less time, effort and expense, but it’s available only in certain circumstances:
- The decedent died more than two years ago.
- The value of the estate subject to Florida probate — not including property that is exempt from creditors’ claims — does not exceed $75,000.
- There are no creditors’ claims pending against the estate.
- The decedent’s will did not specify formal probate administration.
Summary administration is initiated by filing a petition in court. The petition includes a list of assets and their value as well as a plan for distributing them. Petitioners must practice due diligence to find and notify potential creditors.
Any beneficiary or the personal representative named in the will may file the petition. If there’s a surviving spouse, the spouse must verify and sign it.
If the estate doesn’t meet the conditions for summary administration, continue with the probate checklist:
- Categorize the assets. These are examples of assets that aren’t subject to probate:
- Assets held in a trust
- Assets in some pension or retirement accounts
- Assets designated as payable or transferable upon death
- Life insurance policies, annuity contracts or individual retirement accounts payable to specific beneficiaries
- Here are some of the assets that must go through probate:
- Solely owned bank or investment accounts
- Life insurance policies, annuity contracts or individual retirement accounts payable to the decedent’s estate
- Real estate, unless it is homestead property, titled in the sole name of the decedent
- In the absence of a will, determine who the legal heirs are. Heirs must be located and notified, so list all the identifying information you can find.
- If you have not already done so, retain a qualified Florida probate attorney.
- Assemble the forms and documents necessary for opening probate. There are several required forms, but the probate attorney can help.
- When you have everything you need, file a petition for probate administration with the clerk of the county’s circuit court. The decedent’s will must also be submitted.
- During the probate process, resolve issues as they arise. Approve or deny any creditors’ claims. File a tax return if necessary, and pay what is due. If anyone challenges the validity of the will, be prepared for litigation if it comes to that.
- Finally, complete the legal documents that will bring about the transfer of assets to beneficiaries or heirs.
Trust Administration Checklist
Successor trustees are equally busy. Here’s a guide to help you stay organized:
- Gather relevant documents and records like those below:
- Several copies of the death certificate
- Recent tax returns
- The life insurance policy
- Retirement account and pension records
- Carefully review the terms and instructions in the trust. Get a feel for how much discretion you’ve been granted. Note specific limitations as well.
- Consult with a qualified trust attorney who can explain the agreement. You need a clear understanding of your fiduciary duty and how to comply with the law.
- Take custody of all the assets held in the trust. You’ll probably have to retitle everything in your own name in order to maintain legal control.
- If there’s no bank account for the trust, open one right away. You’ll need it to settle debts, pay ongoing expenses and distribute assets.
- If necessary, sell off some assets to free up capital.
- Most life insurance policyholders designate a beneficiary. If that’s not the case, file for any death benefits that the estate is entitled to. As the funds trickle in, deposit them into the trust bank account.
- Have your lawyer help you identify creditors and pay off debts. Hire an accountant who is experienced in estate law to file a return. Pay any taxes owed. Stay current with ongoing expenses.
- Since assets in a revocable trust are subject to a two-year creditor claim period, you may have to settle or dispute claims.
- Keep good records of the debts, taxes, expenses and trustee fees that you pay out of the trust, and forward copies to all beneficiaries. Transparency is crucial.
- Follow the terms of the trust as you distribute assets and transfer ownership to beneficiaries. Your role may be ongoing if benefits are to be paid out over time. For example, you may have been given discretionary control over a spendthrift trust.
- Once all the terms are satisfied, your trust administration lawyer can help you prepare the documentation for officially closing the trust.
Participating in probate or trust management is a big responsibility. Educating yourself and getting organized in advance will pay off.
No one savors the idea of a lengthy legal process, but you don’t have to shoulder the burden on your own. The Florida Probate and Trust Administration exists to help personal representatives and trustees carry out their loved ones’ wishes.