• 1. Probate is the process of collecting assets left in a decedent’s sole name, paying off any of the decedent’s debts, and distributing the remaining property to the decedent’s heirs or beneficiaries. 

   

  • Tips for managing Probate

   

  1. Locate the Will, if there is one.
  2. Determine if there is a named Personal Representative; if not, the closest next of kin.
  3. Contact medical professionals and any other businesses that the decedent saw on a regular basis.
  4. Secure and protect all property.
  5. Identify all bank accounts.
  6. Obtain 5-10 certified copies of the decedent’s death certificate.

  
  For more information, check out our Florida Probate Rules and Processes article.

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. Probate may also be required in another state where the decedent owned real estate. 

In instances with no Will, the Court will determine the rightful heirs and who should serve as Personal Representative based on state law. The Personal Representative is responsible for determining which assets are “probate assets” and “non-probate assets.” “Probate assets” are assets left in the decedent’s sole name that must go through the probate process to remove the decedent’s name; “non-probate assets” are assets there were owned by the decedent; however, the asset is now owned by someone else so it does not require probate. “Non-probate assets” typically transfer automatically to someone else because the decedent owned the asset jointly with someone else or there was a beneficiary named on the asset. 

For more information, check out our Florida Probate Rules and Processes article.

Florida Probate Administration is a court process that transfers assets a deceased person owns to their living heirs or beneficiaries listed in their will. 

1. What if the descendent has debt?
   
   If someone dies with outstanding debt owed, there is a hierarchy of how those debts will be paid using the property and money passing through the probate. First, the decedent’s funeral bill and last medical debts will be paid. Next, any costs for administering the estate are paid, including taxes, Medicaid liens, attorney fees, accountant fees, personal representative fees, and any storage fees for home furnishings. Then any secured, followed by unsecured creditors, are paid. The decedent’s heirs and beneficiaries are not responsible for paying the decedent’s remaining debt if the estate becomes insolvent. 

The Personal Representative must notify known creditors by mail and publish the deadline for filing creditor claims against the estate in the newspaper. 

A formal probate administration typically takes six (6) months to a year, depending on the circumstances. Issues that may result in a longer timeline include ascertaining missing assets, disputes between beneficiaries, payment of income and inheritance taxes, and legitimizing credit claims.

In Florida, a Last Will and Testament (Will) is a written document that directs who will receive property and assets upon a person’s death. It also allows the creator to choose the guardian of a minor child should both parents die while the child is under age of 18.

Read our article, Your Guide to a Comprehensive Estate Plan Part 2, for more information.

Who should have one, and why?

A valid Will is essential for all Florida residents, regardless of age and wealth. The main benefit of creating a Will is that it allows individuals to leave property and possessions to the people of their choice. 

An individual who dies without a Will (or another plan, such as a living trust) is considered to have died “intestate,” which means that the State of Florida dictates how the property will be distributed. See Florida Statutes Chapter 732 for more information.

Our attorneys can help you find the best estate plan to suit your needs. Give us a call at 813-498-2757 for a free consultation.