The death of a loved one is an emotional time and the last thing you want to do is worry about administering an estate and the legal issues involved in the probate process. A probate lawyer, understands how to advise the Personal Representative, also known as an Executor, and the beneficiaries of an estate on how to settle all of the final affairs of a deceased person.
The Role of a Probate Lawyer
The role and duty of a probate lawyer is to guide the chosen personal representative through all the stages of the probate process. The probate process can be complex and will differ based on whether the decedent died testate, meaning with a valid Last Will and Testament or intestate, meaning without a valid Last Will and Testament. A probate lawyer ensures that the personal representative is able to comprehend what must be done to respect the interests of both the beneficiaries and deceased.
A probate lawyer can also be hired to advise the beneficiary of an estate on legal and other matters presented to the beneficiary by the personal representative during the course of the probate process.
The Judy-Ann Smith Law Firm, P.A. is here to help you resolve probate matters, if you have been named a personal representative and you need assistance navigating the process, or if you are a beneficiary needing advice on the probate process, attorney Judy-Ann Smith can help you. Attorney Judy-Ann Smith offers her clients dedicated representation and trusted counsel
What is Probate?
Probate is the process of identifying the assets of a decedent (deceased), paying the debts of a decedent, and distributing the assets of a decedent to his or her beneficiaries. Distributing the assets of in a probate proceeding is necessary to pass ownership from the decedent to the beneficiaries.
Probate Services offered:
- Probate – formal administration or summary administration
- Ancillary probate
When a person dies leaving a valid trust, a Trust Administration becomes necessary to carry out the wishes of the decedent’s as written in his or her trust. Our law firm will work with the Trustee and beneficiaries to have the trust administered in a timely and professional manner.
Florida Probate FAQs
What is the probate process in Florida?
Under Florida law, there are two types of probate administration: summary administration and formal administration, both of which are court-supervised processes. There is also a non-court-supervised proceeding, “Disposition of Personal Property Without Administration,” a type of administration that can only be used when the decedent did not leave any real property and the only assets either do not exceed the amount of the final expenses or are exempt from creditors’ claims.
What is summary administration?
When estates have less than $75,000 of non-exempt assets, summary administration, a simplified form of probate may be used. This probate process does not require the appointment of a personal representative and is often used when more than two years have passed since the decedent passed away.
What is formal administration?
This is the most common type of probate process in Florida and is set into motion when an executor or personal representative is nominated through the will and petitions the Court to appoint him or her as the Personal Representative of the estate. The Court issues a Letter of Administration to give the Personal Representative authority to settle the estate. The Court is generally in the same place in which the deceased was living at the time of death.
All beneficiaries and heirs of the deceased must be given notice of the proceeding in order to have a chance to object. If there is a will, it also must be filed with the Court.
Under the Court’s supervision, the Personal Representative will then:
- Inventory all of the deceased’s assets
- Pay debts and taxes
- Distribute the remaining assets to the people listed in the will
- Provide evidence to the Court and request that the estate be closed
To close the estate, the Court will issue an order and relieve the Personal Representative of further responsibilities.
When a deceased person leaves behind few assets, Florida law allows for someone who paid for final expenses such as funeral costs and hospital bills to be reimbursed from the assets of the estate. This can only be done 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
For more help with the probate process, we’ve compiled a complete Florida Probate Checklist to help you before, during, and after your probate is completed. If you have any additional questions, please reach out to our dedicated team and they will be happy to assist you.
Do all estates have to go through probate in Florida?
No. There are a number of assets that can be settled without going through the probate process and may go to the new owner without court approval. The most common types of these assets include:
- Property held in joint tenancy by more than one person, such as a home owned by a married couple
- Assets for which the decedent designated a beneficiary, such as the proceeds from a life insurance policy
- Assets held in a living trust
Why is probate necessary in Florida?
Probate is necessary in Florida to pass ownership of the decedent’s probate assets to his or her beneficiaries and it is also necessary to complete the decedent’s financial affairs after his or her death.
In order to determine who legally has rights to those assets, the legal system of probate comes in to mediate. Probate is also necessary in order to make sure that financial debts are paid. When someone passes away with debt, the creditor may have a valid right to part of the assets as compensation.
How long does probate take in Florida?
The length of time to complete the probate process varies, but should usually be completed within 12 months of the personal representative being appointed. If the estate is relatively simple, proceedings may only last a few weeks. This short time period may be possible with some summary administration proceedings.
When a formal probate proceeding has started, however, it may take several months to complete. In the event an estate is particularly complex, probate may take more than a year. Since there are strict guidelines for informal probates, most probate proceedings are formal. The time needed to complete formal probate also varies depending on the type of the estate’s assets. Real estate holdings, for example, may slow down the process if they take a long time to sell.
In any case, formal probate must last a minimum of three months in order to give creditors time to file a claim. If a large estate has tax complications, the proceedings can last more than two years
How much does probate cost in Florida?
To initiate probate, there is a filing fee to be paid to the clerk of the circuit court in the county in which the decedent lived at the time of death. The hiring of an attorney is required by law for summary administration and formal administration. Because the probate process can be complex—particularly when the estate itself is complex—you will likely find legal assistance very helpful in navigating probate.
Florida statutes set out attorneys’ fees for probate that are related to the value of the estate, excluding homestead property. Here are some examples:
- Value of estate up to $40,000: $1,500
- $70,000 to $100,000: $3,000
- $1 million to $3 million: $3,000 plus 2.5% of the value over $1 million
- More than $10 million: $3,000 plus 1% of the value above $10 million
In addition, attorneys may charge for other services, such as providing tax advice. Since these costs may vary, it’s important to ask your attorney if they follow the state fee schedule and whether they can quote you an hourly rate or flat fee.
What are probate assets?
These are assets that were owned in the decedent’s sole name at the time of his or her death, or assets that were owned at that time by the decedent and one or more co-owners, but lacked a provision for automatic succession of ownership. Examples include a life insurance policy or IRA account payable to the decedent’s estate is a probate asset, while a policy payable to a designated beneficiary is not.
How do I avoid probate in Florida?
People commonly seek ways to avoid the often confusing and complex probate process. In Florida, probate may be unnecessary in these instances:
- When assets are jointly owned
- When assets have been designated to beneficiaries by the decedent’s will
- If there is a living trust
- If there are transfer-on-death registrations for stocks, bonds, or vehicles, or transfer-on-death deeds for real estate
Keep in mind that most of the measures that can help you avoid probate must be taken prior to death.
What assets are exempt from probate in Florida?
Some assets in Florida may be except by being automatically passed on to a spouse or child. One example is where the spouse or children may be living. Furnishings in the house are considered exempt property and may also skip probate. Exempt property can include items with a value of up to $20,000. Exempt property can also include two motor vehicles and qualified tuition programs. Some restrictions apply, so you should consult a Florida probate and estate attorney for advice.
Keep in mind that most of the measures that can help you avoid probate must be taken prior to death.
What is considered a small estate in Florida?
A small estate may be eligible for summary administration probate proceedings. A small estate in Florida is valued at less than $75,000. A small estate may be eligible for summary administration, which may also be considered if the deceased has been dead for more than two years with no claims being made. If the court recognizes the estate as small, the proceedings are streamlined for faster turnaround.
What happens if there is no will?
A person who dies without a valid will is said to be “intestate.” It’s a misconception that the state will automatically take all of an intestate decedent’s assets even if there are heirs. If the decedent died intestate, his or her probate assets will be distributed to heirs in an order specified by Florida’s Statutes.
Is an attorney required for probate in Florida?
Most of the time, you will need a lawyer to manage your probate proceedings in Florida. The main exceptions occur with very small estates, which are processed via disposition without administration, and estates where the executor is the sole beneficiary. Florida law requires all other probate cases to have support from an attorney. More than that, probate proceedings are complicated and hard to understand. Therefore, an attorney is the best way to protect yourself during the process. An experienced probate attorney can make sure that all documents are filed correctly in order to avoid complications.
Are probate records public in Florida?
State court records—including probate records—are public in Florida in most cases. According to Florida law, the public has a presumptive right of access to all court records in the custody of the court clerk. The paperwork filed with the probate proceedings can be made available by request at the court’s office where it was filed, including the will.