Probate Primer

 

By: Aimee K. Arce, Esq.

 

Death is never easy. The days, weeks, and months following the loss of a loved one can be overwhelming. After you notify family members, and plan and complete the funeral arrangements and services, you then have to carry out your loved one’s final wishes by administering his or her estate. Without proper estate planning, probate is often required.

What is Probate? Probate is the legal process for distributing the property of a deceased person (decedent) upon his or her death. It has three primary purposes: (1) identify and collect the decedent’s assets; (2) determine the decedent’s creditors and pay outstanding debts; and (3) distribute the decedent’s assets to his or her beneficiaries.

There are different forms of probate available in Florida. The form of probate required for a decedent’s estate will generally depend on the decedent’s date of death and the value of his or her probate estate.

Formal Administration: Formal administration is the traditional form of probate in Florida. The process in a formal administration proceeding can differ depending on the size of the decedent’s estate, the assets involved, his or her debts, and the beneficiaries.

To initiate a formal administration proceeding, the personal representative named in the will (if there is a will) or an interested party petitions the probate court to be appointed personal representative of the decedent’s estate. The beneficiaries or heirs (those individuals who would inherit in the absence of a will) are generally provided notice of the petition and are given an opportunity to object.

Assuming no objections are filed, the probate court will issue letters of administration, that is, a court order which provides the personal representative with authority to administer the decedent’s estate. Under the court’s supervision, the personal representative is responsible for identifying, collecting, and taking inventory of the probate assets; paying the decedent’s debts and taxes; and ultimately distributing the probate assets to the beneficiaries or heirs of the estate.

The personal representative must identify, collect, and inventory the decedent’s probate assets (e.g. real property, bank accounts, stocks, bonds, and business interests). In many cases, an independent appraiser is hired by the estate to appraise the decedent’s property.

The personal representative must provide written notice to all known and ascertainable creditors of the decedent’s estate. In addition, the personal representative must publish a notice to creditors once a week for two consecutive weeks in a newspaper published in the county where the estate is being administered. Any creditor who wishes to file a claim against the estate must do so within the later of thirty days of receiving written notice or three months after the first publication. The personal representative must determine which creditor claims are legitimate and pay those and other final bills from the estate.

The personal representative must submit a final accounting to the probate court indicating the decedent’s probate assets, the management of such assets, and the plan for distribution. After the probate assets have been distributed, the personal representative must file receipts with the probate court and request the estate to be closed. Lastly, the court issues an order closing the estate and releasing the personal representative of further responsibilities. A formal administration proceeding takes usually six months to a year to complete, but can certainly take a much longer period of time.

Summary Administration: Summary administration is a form of probate in Florida for small estates. To be eligible, the estate must contain less than $75,000 in assets (not including the decedent’s homestead subject to probate), or the decedent must have passed away more than two years from the date of the filing of the pleadings.

It is important to note that a personal representative is not appointed in summary administration, and therefore, no one has the authority to inquiry, collect, manage, or distribute the decedent’s assets in the same manner as an appointed personal representative does. Instead, the probate court simply issues an order releasing the decedent’s assets subject to probate to the appropriate beneficiary or beneficiaries.

Ancillary Administration: Ancillary administration is a secondary form of probate when the decedent’s primary estate is in another state. Ancillary administration is generally required in Florida if the decedent was not a Florida resident upon his or her death, and passed away owning property in Florida. Ancillary administration follows the same procedures as formal administration or summary administration depending on the decedent’s date of death and the value of his or her property.

Disposition of Personal Property without Administration: Disposition of personal property without administration is a proceeding that occurs in probate court; however, it is not technically a form of probate. It is only available in limited circumstances when the value of the probate assets is less than the funeral expenses. If you paid the funeral expenses and/or medical expenses from the last sixty days of the decedent’s life, you are entitled to a reimbursement from available personal property of the estate. It is important to know that the reimbursement for the funeral expenses is limited to $6,000.

Losing a loved one is hard. We are here to help you in this difficult time. When you are ready to speak with an attorney, we can determine the form of probate necessary to handle your loved one’s estate and work through the legal process with you.