What is probate?
Probate is the legal procedure in which the probate court assumes jurisdiction over the assets of someone who has died. The court supervises the payment of debts, taxes, and probate fees, then supervises the distribution of the remainder to the person(s) named in a will, or to the heirs if there is no will.
Florida probate law varies depending on the type of property. It is important to get guidance from an experienced Florida Real Estate Probate and Homestead Property Attorney.
A Florida probate can include:
- Proving to the Florida probate court that the deceased person’s will is valid.
- Identifying and preparing an inventory of the deceased person’s property.
- Determining the value of the deceased person’s property.
- Paying all debts and any taxes due.
- Distributing the remaining property as the will or the law directs.
- Attorney and court fees which are typically paid from estate assets.
PERSONAL REPRESENTATIVES are under no obligation to use the same law firm that wrote the will. Nearly all probate procedures in Florida involve paperwork drafted and filed by probate lawyers. Unlike some other states, Florida law generally does not allow “do-it-yourself” probate except in some cases involving very small bank accounts, refund checks, or similar assets.
Types of Probate Administration in Florida:
- Formal Probate Administration – The Normal Probate Process
This is Florida’s traditional form of probate administration. It requires APPROXIMATELY 12 months to complete. It is usually used for complicated issues such as challenges to the Will, disputes between beneficiaries or heirs, or supervision of the Personal Representative.
The following is an over-simplified description:
The process starts with a petition for administration and the appointment of one or more personal representatives (executors). After that, a Notice to Creditors is published in a local newspaper, and creditors generally have three months in which to file their claims.
Once the period of time for creditor claims has passed, the personal representative can pay the debts (in a certain order) and distribute the remaining estate. Once all debts are paid and the remainder of the estate has been distributed, a petition for discharge is filed, and the Florida estate is closed upon entry of an order of discharge.
While this may sound simple, probate is a fairly complex system of required and optional tasks by the personal representative, the attorney and sometimes a tax consultant (often a CPA). Of course, the simpler the assets and the deceased’s plan of distribution, the simpler the Florida probate will be.
- Summary Probate Process for Small Estates
The state also provides a “short form” of probate for certain smaller or older estates, which is quicker and cheaper than the “formal administration” used for most Florida probate administrations.
Summary probate administration is available for estates with “non-exempt” property of less than $75,000 and the decedent has no outstanding unpaid debts, or in cases where the decedent passed more than 2 years ago. The value of “homestead” real property is not counted in totaling the value of the estate, nor is any other proposed exempt property. Summary administration can also be used in any size estate if the deceased has been dead FOR more than two years. Summary administration does not work in certain cases, such as those with minor or missing heirs, or where the assets or debts of the deceased are unknown.
FLORIDA HOMESTEAD PROPERTY PROBATE RULES
If the deceased’s real estate is considered their “homestead,” the state of Florida applies certain unique rules to the transfer of the property. The homestead property exemption was created to protect families from being displaced from their home; however, there are many special rules to this probate property law.