To the average person, the term “probate,” and its process is a complete mystery. When asked what probate is, a non-lawyer may be able to explain probate is a legal process that takes place after someone dies – but chances are not much more is known than that. In this month’s blog, we break down the definition of probate and discuss the probate process in Florida.
The following is a brief list of the most common terms found and used throughout the probate process:
- Probate – The process of collecting a decedent’s assets to pay off debts and distribute assets to their heirs. In Florida, that process is governed by the circuit courts, and, in most counties, one judge is appointed to handle all probate matters.
- Decedent – A deceased individual.
- Intestate – When a person dies without a valid last will and testament, the State of Florida declares the property of the deceased “intestate.” Intestate probate is distributed according to Florida’s prescribed order and hierarchy of beneficiaries.
- Probate Court – Used to describe the court where the probate matter is administered.
- Personal Representative (PR) – A person or entity legally appointed to oversee the distribution of assets from a deceased person’s estate. This term is synonymous with the term “Executor” but Florida uses the term Personal Representative.
- Beneficiary/Beneficiaries – An individual or group named in a testamentary document, such as a last will and testament, to receive a portion of the decedent’s assets.
- Notice of Administration – A written notice mailed to beneficiaries and other interested parties by the Personal Representative letting the recipients know that a probate was opened. A Notice of Administration is required in Florida and provides specific details on the probate proceedings, such as the case number and court where the probate is pending, and any deadlines to object to the probate and Personal Representative.
- Probate Litigation – Describes a legal dispute during the probate process. The most common types of probate disputes during a probate include challenges to wills/trusts, legal disputes over guardianship, and challenging or requesting the removal of a personal representative.
Typically, probate begins shortly after a decedent’s death by filing the decedent’s last will and testament (or “Will”) with the circuit court clerk in the county where the decedent resided. In some cases, a probate may be in a county where the decedent owned real estate.
In the absence of a valid Will, the State of Florida will declare the estate is “intestate.” Florida has a specific process for determining who receives the decedent’s assets, the entirety of which can be found in Chapter 732 of The Florida Statutes. In instances with no Will, the Court will determine the rightful heirs and who should serve as Personal Representative (PR) based on state law. If the initial documents filed are in proper form, the Court will issue Letters of Administration as proof that the PR is empowered to act on behalf of the estate.
Once qualified, the PR then begins the process of gathering the assets of the estate. The PR is responsible for collecting and managing probate assets, which are those assets that pass to heirs under the terms of the decedent’s Will or by the law of intestate succession if there is no will. The PR is responsible for determining which assets are “probate assets” and which assets were “non-probate assets”. Probate assets must go through the probate process while non-probate assets do not.
Non-probate assets are those which pass to others by means other than a will or intestate succession. These assets pass directly at the decedent’s death, are not held up in the probate process, and are not subject to paying off debts. Examples include:
- Jointly titled assets that pass to surviving owners.
- Beneficiaries of individual retirement accounts, life insurance policies, or other assets that permit a beneficiary designation.
- Heirs of trusts who hold title to a decedent’s assets before death.
After gathering assets, the Personal Representative must notify creditors by mail and publish the deadline for filing claims against the estate to pay the decedent’s debts. If claims are not filed promptly, they will be barred, meaning the creditor does not get paid. The Personal Representative has 30 days after a claim is filed to object to the claim. If no timely objection is filed, the PR must pay the claim using estate funds. If the PR objects to the claim, the creditor has another 30 days to file suit to have the court decide the claim’s validity. If the creditor’s suit is not filed in a timely fashion, it will be barred and the creditor does not get paid.
In Florida, most beneficiaries are free of inheritance tax, but there are exceptions. Under current law, an estate will not pay estate taxes unless the value of its assets exceeds $12,000,000. However, even if no estate tax is due, the Personal Representative must file the decedent’s final income tax return, covering the year of the decedent’s death from January 1st through the date of death. The decedent is further required to file an income tax return for the estate (form 1041) before the estate is closed, for any year its income exceeds $600.
After all creditor claims are paid or resolved, the PR must distribute the remaining assets to the heirs. To do so, the PR may be required to close accounts to convert them to cash, sell other assets if the Will directs, or execute deeds to transfer real estate titles to heirs. In addition, the PR must file a final accounting with the court, showing which assets came into the hands of the PR, which debts and expenses were paid, and what bequests were distributed. The PR also must file a petition with the court to close the estate and discharge the PR from further service. If the court finds everything in order, it will issue an order to close the estate, at which time the process is finished.
The probate process typically takes a minimum of 6 months but can take over twelve months, although the timeframe may vary in some cases. Every legal process is different, and seeking the services of competent estate planning attorneys can simplify the process and save you time and money. At McCart & Tesmer, our mission is to serve as Tampa Bay’s leader in Marital Law, Family Law, Estate Planning, and Probate. If you are in the probate process and need help sorting out assets, give us a call for a free consultation today – 813-498-2757.