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What Is Probate?

November 11, 2022 by in Probate

What Is Probate?

In Florida, probate is the legal process that happens after someone dies with assets. It includes gathering the deceased person’s assets, paying any debts and taxes, and distributing what is left to the beneficiaries named in the will. If there is no will, Florida law determines who receives the assets. The entire process can take up to a year and costs thousands of dollars in legal fees. Thankfully, there are ways to avoid probate – Lacey Lyons Rezanka Attorneys At Law will discuss those later in this article. But if you do need to file for probate in Florida, it’s important to have an experienced attorney by your side.

The steps in Florida’s probate process

File the petition

The first step in the probate process is to file a Petition for Administration. This document includes various supporting documents such as the decedent’s will and death certificate. The petition must be filed in the circuit court of the county where the deceased lived at the time of death. If your documents properly reflect the information required by the Courts, approximately one month after filing, you will receive two signed orders. One is an Order Admitting the Will and Appointing the Personal Representative (or if there was no Will, just an Order Admitting the Personal Representative) which states that your request for probate has been accepted. The second order is the Letters of Administration that tells all financial institutions that the named Personal Representative has the power to handle accounts.

Notify all creditors

All creditor claims against the estate must be paid or objected to before assets are distributed to beneficiaries. However, creditors need to file a claim with the estate in order to get paid. If they don’t file a claim, the estate may not have to pay their debt. The personal representative has a legal duty to make sure all creditors are notified that probate has been initiated. All of the reasonably known creditors should receive direct notice through the mail, and to prevent claims from those not yet identified, a Notice to Creditors must be filed in the local newspapers stating that the estate has been opened.

Inventory the estate

After the personal representative has been appointed, their next task is to inventory all estate assets. This can sometimes be easy, but other times it may be tough to find and identify everything. It is helpful to review mail at the deceased person’s house for bank statements, credit card statements and Deeds or property tax records.

Closing the claims period and paying claims

After making sure that all creditors have been notified, if any claims are filed against the estate, the personal representative should consult with their attorney to determine which claims should be paid and which claims should be objected to. Any claims received after the creditor claim period closes may be considered invalid and the estate may not owe anything for them.

File the accounting

The last step is to file the accounting with the probate court, which will outline the inventory value of all assets, the current value of assets, debts paid, and expenses incurred during the probate. The personal representative must provide records for Court approval which confirm the figures in the accounting. The accounting may be waived by the beneficiaries if they are willing to do so. For instance in an estate which only had real estate or if there is only one beneficiary.

Distribute the assets and close the estate

After the accounting has been approved, the personal representative may distribute the assets left according to the terms of will. They must then file a request with the court to be relieved from their obligations after everything has been distributed.

The types of probate in Florida

Under Florida law, there are three standard types of probate administration. These are Formal Administration, Summary Administration, and Disposition of Personal Property Without Administration. Formal Administration is for situations where the decedent owned more than $75,000 in assets. Formal Administration is also for if there is a situation where a personal representative needs to be appointed. Summary Administration is for situations where there are no creditors and the value of the assets is below $75,000. Disposition of Personal Property Without Administration only occurs in rare cases. This happens when the decedent owned assets at death with a value below that of funeral expenses.

The length of probate in Florida

The average formal probate administration process takes 6-9 months to complete. This includes appointing a personal representative, allowing a 90-day creditor’s period, paying creditors’ claims and more. It’s important to note that the personal representative appointed by the probate court has the ability to manage and sell estate assets. The probate process can take several months, but the estate’s assets can be sold and managed in the meantime. After 90 days (starting from when it is published in a newspaper), the personal representative can begin to sell and distribute assets as long as the beneficiaries don’t object.

How to avoid probate in Florida

In Florida, you can circumnavigate probate by employing joint ownership with survivorship rights, beneficiary accounts, ladybird deeds, and living trusts. For example, two people may own physical property jointly as tenants who have survivorship rights (or JTWROS). The best way to avoid probate is to contact Lacey Lyons Rezanka Attorneys At Law. We can help you ensure that your will is in order.

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