Probate
Probate serves an important function in estate planning. The probate process validates a will, ensures the will's instructions are followed, creates an inventory of the estate, provides an opportunity for creditors to be repaid, settles disputes and ensures the transition of the estate to beneficiaries doesn't miss any steps.
Probate is held for assets solely owned by the decedent and without a clear beneficiary designation. Life insurance, IRAs, annuities and some bank accounts avoid probate when they list living beneficiaries. Jointly owned assets with rights of survivorship can avoid probate and assets in a living trust avoid probate.
Assets such as a home, vehicles and personal property are typical items counted as probate assets. If probate assets exceed $75,000 in Florida, a formal probate process is required. Formal probate requires an attorney to be part of the process.
If the estate is less than $75,000, a Summary Administration or Deposition of Personal Property Without Administration may be held. Consult an attorney to determine which form of probate is best or necessary for an estate.
The formal probate process starts with the will being filed and a Notice to Creditors published in a local newspaper. All interested parties to the estate must receive a Notice of Administration. After an inventory of assets and debts is created, creditors are contacted and debts are resolved. After tax returns are filed and paid along with all other estate expenses, the probate court can allow the distribution of the estate to the beneficiaries.
Formal probate typically lasts four months to a year, depending on how complex the estate is to resolve. Creditors are given a minimum of three months to make claims against the estate.
Attorney fees are limited by Florida state statutes. Fees can be negotiated with the family and some attorneys charge a flat fee. Personal representatives (the executors of the estate) can also be compensated. Personal representatives, if an individual, must either be a close relative or a Florida resident. A bank or trust company may serve as personal representative as well.
Consult an attorney before taking any action from this site. The Florida State Bar provides this free
probate guide.