Probate and Estate Administration

Probate in Florida
Probate is the court process through which a deceased person’s (decedent) assets are transferred to his or her heirs or beneficiaries. A Personal Representative is typically appointed, who identifies and gathers the assets of the decedent, pays the decedent’s lawful debts, and then distributes the decedent’s assets. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration.

Assets that must be probated
Assets that are required to be probated are those assets that were owned in the decedent’s sole name at death, or which were owned by decedent and another person or entity without rights of survivorship or payable on death designation.
Examples of those that need probate are as follows:

A bank account or a stock brokerage account in the sole name of a decedent are probate assets, but the same kind of owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
A life insurance policy, annuity contract or individual retirement account that has a beneficiary designation identifying a specific beneficiary is not a probate asset, but such an asset payable to the decedent’s estate is a probate asset.
Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
Property owned by spouses as tenants by the entirety is not a probate asset when one spouse dies, but goes automatically to the surviving spouse. However, if the surviving spouse then dies without proper estate planning, such property would then require probate of the surviving spouse’s probatable assets.

Does a will avoid probate?
A popular misconception is that a valid Florida Will avoids probate but that is not correct. As stated above, probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those who are to receive them under Florida intestacy statutes.

Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed. Equally important is that probate will bar creditor’s claims made after the probate process has been properly closed.

What constitutes a valid will under Florida Law?
According to Florida law, a valid will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.

If someone dies without a will do the assets go to the state of Florida?
Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are those who are related to the decedent and described in the Florida statute governing distribution of the probate assets of a decedent who died without a will.

If someone dies without a valid will (intestate) who receives the assets?
If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):

If the decedent was survived by a spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. If the decedent was survived by a spouse and had one or more living descendants (all of whom are the descendants of both the decedent and the spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

If the decedent was survived by a spouse and had one or more living descendants of both the decedent and the spouse), and the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

If the decedent was not married at the time of death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. If the decedent was not married at the time of death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.

Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

The examples given above are subject to certain exceptions for homestead property and exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedent’s homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within six months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

What should be done with the decent’s original will?
Whomever is in possession of a decedent’s original will must file the original will with the clerk of the court having venue of the estate of the decedent within 10 days of receiving information that the testator is dead.

In the interest of protecting the privacy of the decedent’s beneficiaries, any documents that contain financial information pertaining to the decedent’s probate estate are not available for public inspection.

What are the rights and obligations of a personal representative?
The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”

The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:

Identify, gather, value and safeguard the decedent’s probate assets.
Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
Object to improper claims, and defend suits brought on such claims.
Pay valid claims.
File tax returns and pay any taxes properly due.
Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
Pay expenses of administering the probate estate.
Pay statutory amounts to the decedent’s surviving spouse or family.
Distribute probate assets to beneficiaries.
Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.

Please Contact Us With Your Questions About Probate and Estate Administration.

Email Us Today! Call Us Today!

Who is qualified to serve as a personal representative?
The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.

To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, or mentally or physically unable to perform the duties, or have been convicted of a felony.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.

Does the personal representative need an attorney?
A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on the rights and duties under the law, and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.

What obligations are owed to estate creditors?
One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

The Internal Revenue Service (IRS)
The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

The decedent’s final Form 1040, U.S. Individual Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
One or more Forms 1041, U.S. Income Tax Return for Estates and Trusts, reporting the estate’s taxable income.
Form 709, U.S. Gift Tax Return(s), reporting gifts made by the decedent prior to death.
Form 706, U.S. Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative also may be required to file other returns not specifically mentioned here.

The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not from the personal representative’s own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

The estate will not have any tax filing or payment obligations to the state of Florida; however, if the decedent owed Florida intangibles taxes for any year before the repeal of the intangibles tax as of Jan. 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

What are the rights of the decent’s surviving family?
The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse also may have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30 percent of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children also may have the right to a family allowance to provide them with funds before final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney.

Can a relative be disinherited in a will?
Subject to exceptions, a Florida resident has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift of, for example, $1.00.

How long does it take to complete a probate proceeding?
It is reasonable to expect that a simple probate estate will take about five or six months to properly handle. It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances would tend to lengthen the process of administration.

How are the persona representative’s compensation and professional fees determined?
The personal representative, the attorney and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

The personal representative’s compensation is usually determined in one of five ways:

As set forth in the will.
As set forth in a contract between the personal representative and the decedent.
As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation.
The amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries.
As determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways:

As agreed among the attorney, the personal representative and those who bear the impact of the fee.
The amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries.
As determined by the judge.

What happens if there is a revocable trust?
If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee may be required to pay expenses of administration of the decedent’s probate estate, enforceable claims of the decedent’s creditors and any federal estate taxes payable from the trust assets.

The trustee of such a trust is always required to file a “Notice of Trust” with the clerk of the court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust, and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks that must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of the gross estate for purposes of determining federal estate tax liability.

Probate and Estate Administration

Please Contact Us With Your Questions About Probate and Estate Administration.

Practice Areas

Practice Areas