Probate Law Firm
Probate is the court supervised administration of the estate of the decedent. This is the process used to transfer the assets of the decedent to the beneficiaries. Probate is necessary if the decedent owned any assets in his or her sole name at the time of death. If an asset is jointly titled or has a beneficiary named directly on the asset, that asset is not subject to probate. A probate estate may either be “testate” or “intestate”.
What is a Probate Estate?
A probate estate is “testate” if the decedent has a valid Last Will and Testament at the time of death. The Last Will and Testament serves to direct the probate Judge as to who may serve as the personal representative of the estate and also the who are the beneficiaries. A probate estate is “intestate” if the decedent did not have a valid Last Will and Testament. In that case, the personal representative and beneficiaries are decided by the Florida statutes.
Additionally, a probate may either be a summary administration or a formal administration. A summary administration probate is an abbreviated version of the probate process. An estate may be eligible to complete a summary administration probate if the value of the estate does not exceed $75,000 or the decedent has been deceased for more than two years. If the estate does not qualify for a summary administration, a formal administration probate would be necessary.
How to Administer Probate
The formal administration probate requires the court to appoint a personal representative, more commonly known as an executor. The personal representative is responsible for handling the affairs of the estate. Specifically, the personal representative must complete the following duties:
- Notify all interested parties.
- Gather all of the probate assets of the decedent.
- Prepare an inventory of the probate assets of the decedent.
- Notify the creditors of the decedent of their opportunity to make a claim.
- Satisfy the creditors’ claims.
- Prepare an accounting and distribute the funds to the beneficiaries.
- Request discharge of the fiduciary responsibilities.
These proceeds are complex and time consuming and it is therefore advantageous to seek the assistance of a knowledgeable and experienced probate attorney.
Contact Bell Law Firm for a free consultation.
WHAT IS PROBATE?
Probate is the court process used to transfer the assets of the decedent to the beneficiaries. It is necessary to complete a probate when the decedent owned assets in his or her sole name at the time of death. If an asset is jointly titled or has a beneficiary designated directly on the asset, that asset would not be subject to probate.
WHAT IS A SUMMARY ADMINISTRATION PROBATE?
A summary administration probate is an abbreviated version of the probate process. An estate may be eligible for a summary administration probate if the value of the estate does not exceed $75,000 or the decedent has been deceased for more than 2 years. If the estate does not qualify for a summary administration, a formal administration probate would be necessary.
WHAT IS A FORMAL ADMINISTRATION PROBATE?
A formal administration probate is necessary when the value of the estate exceeds $75,000 or if there are any unknown assets or creditors of the decedent. The formal administration probate requires the court to appoint a personal representative, more commonly known as an executor. The personal representative is responsible for handling the affairs of the estate. Specifically, the personal representative must complete the following duties:
- Notify all interested parties.
- Gather all of the probate assets of the decedent.
- Prepare an inventory of the probate assets of the decedent.
- Notify the creditors of the decedent of their opportunity to make a claim.
- Satisfy the creditors’ claims.
- Prepare and file tax documentation.
- Prepare an accounting and distribute the funds to the beneficiaries.
WHAT IS THE DIFFERENCE BETWEEN A TESTATE AND INTESTATE ESTATE?
A probate estate may either be “testate” or “intestate”. A probate estate is “testate” if the decedent had a valid Last Will and Testament at the time of death. The Last Will and Testament serves to direct the probate Judge as to the decedents selection of the individual that shall serve as the personal representative of the estate and also as to the designated beneficiaries. A probate estate is “intestate” if the decedent did not have a valid Last Will and Testament. In that case, the personal representative and beneficiaries shall be those individuals assigned by the Florida Statutes.
Florida Homestead Laws and Probate
When an individual passes away owning a homestead property in the State of Florida, that property transfers outside of the Florida Probate Estate through a homestead determination procedure. This procedure determines whether the property qualifies as the homestead of the decedent and therefore, exempt from claims, and this procedure determines the individuals to whom the property shall be transferred. To whom the property shall transfer depends on the following:
- Does the decedent have a valid Last Will and Testament?
- Does the homestead distribution provision in the Last Will and Testament comply with Florida Law?
- Was the decedent survived by a surviving spouse?
- Did the surviving spouse make a timely valid election under Florida Probate Law?
- Was the decedent survived by a minor child?
- Was the decedent survived by descendants?
A knowledgeable probate attorney shall review the specific facts as it applies to the property and the relationships of the decedent to determine the rightful beneficiaries. It is very important to consult a probate attorney in a timely manner as there are time limits involved in protecting your rights as a beneficiary.