In simple terms, probate is the procedure that is followed and monitored by the court system to denote and collect a decedent or deceased individual’s assets, satisfy their debts and allocate their assets to the rightful heirs. Chapters 731 through 735 are the relevant sections of the Florida Statutes that apply to Probate and the guidelines for the regulation of Florida probate cases are set forth in the Florida Probate Rules, Part I and Part II.
There are two methods of probate management as defined by Florida law: formal administration and summary administration. In addition, there is a way to distribute an estate with minimal court involvement, which is referred to as “Disposition of Personal Property without Administration.” This situation, however, only is available in select instances. In order for a Probate to be necessary, there must be Probate assets.
Examples of probate assets include, but are not limited to:
Investments or bank accounts owned solely by the deceased individual;
Life insurance policies, annuities or retirement funds whose recipient is the decedent’s estate;
Real estate where the title is held solely by the deceased individual or by the individual and one or more parties and the title to the property does not pass as a matter of law; and
A motor vehicle that is owned solely by the deceased individual.
Why is Probate Required?
Probate is required in order to settle the details of the deceased person’s estate. It is also required to clearly settle all a deceased individual’s financial concerns after death. Allocation of the deceased individual’s resources insures all bills the individual owes are rectified according to Florida laws and the proper parties obtain possession of the deceased individual’s property.
How are Probate Cases Started?
A probate case is filed with the Clerk of the Circuit Court in the county the deceased person resided when they died. There is a fee to file a probate case, which is paid to the clerk when the case is filed. After filing, the case is allotted a file number and every piece of paperwork that is relevant to the case goes through the Clerk’s office before being placed in that file.
There are some cases in Florida that do not require a probate even if the deceased individual has a valid will. Under Florida regulations, any party that holds a will in their possession for decedent must file it with the relevant Circuit Court Clerk within 10 days of discovering that person has died. If the probate process is necessary, the court will ascertain whether or not the will is legal and valid.
Are There Resources that do not Require Probate?
There certainly are. The most frequent instances are where property passes to the heir without court involvement. Examples include:
Assets held by the deceased individual in partnership or jointly with another party such as a home or financial accounts
Items placed in a living trust
Accounts with a named beneficiary
When No Assets Are Available To Distribute
When someone that dies has a small amount of property, there is a method for the individual who paid the fees for the decedent’s burial or final bills to have their money returned to them from the resources that are available.
In order for a person in this position to be reimbursed, they must file the paperwork for Disposition of Personal Property without Administration with the Clerk of Court in the appropriate county. This form outlines all the money that was spent, where it was spent, why it was spent and what resources the decedent has. When this paperwork is filed, it also must include a death certificate.
More on Summary Administration
This option applies to many Florida probate cases and can be employed if:
The total estimated value of the property that is to be administered is no more than $75,000, excluding exempt homestead real property.
This method is commenced by filing a Petition for Summary Administration. This paperwork details the assets of the deceased individual, how much the assets are worth and who receives the assets or property. If the court decides the case is appropriate for summary administration, it releases an order which allocates the assets to the heirs. Summary Administration can be more cost efficient and less time consuming than Formal Administration. If the decedent had limited assets and limited creditors, then proceeding with Summary Administration may be beneficial for a family, beneficiaries or heirs.
What is Formal Administration?
If the situation is not satisfied through the above stated two methods, then it is likely that a Formal Administration will be necessary. The proceedings begin when the named Personal Representative in the decedent’s will, one of the decedent’s heirs, or another interested party files a Petition for Administration. In most instances the probate process occurs in the county where the decedent was residing at the time of death. All other interested parties need to be served with proper notice of the probate process so they have an opportunity to object and are made aware of the proceedings.
In the next step, the Court issues Letters of Administration, which names the person who will serve as Personal Representative. If there is a Will, it must be filed with the Court and proven to be valid. There is also such a thing as a “self-proving will” where the will’s witnesses attest to the will’s validity while the person is signing it before a notary public.
While the court oversees the process, the Personal Representative collects the assets, settles outstanding debts and releases the remaining funds to the heirs. As this process transpires, the Personal Representative must document all this information with the Court. Once the Personal Representative has accomplished all required tasks, he or she must file another document with the Court requesting an Order of Discharge in order to close the Probate. Once the file is reviewed by the Clerk of the Court and the Judge, the court releases an order officially closing the case. The entire process can be very intensive and normally takes six months to one year to resolve. Very complex Probate cases can take well over one year to resolve all issues and close the Estate.
Our Tampa Probate and Estate Planning Attorney can help
If you need legal help with Probate and would like to schedule a free consultation with our Experienced Probate Attorney contact our law firm today.