Probate Primer

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.

By: Aimee K. Arce, Esq.