Opening a Probate Estate
What is Probate?
In order to transfer the assets of the deceased to his or her living heirs, a court proceeding needs to be opened*. (Called variously “probate”, a “probate estate” or just an “estate”). If you do not open a probate estate, the assets of the deceased will remain in the name of the deceased, and nobody will have access to any of those assets. Probate is absolutely necessary to get at those assets.
*Some assets do not require probate, such as anything with a right of survivorship, or beneficiary designation. We can advise you which assets need to be probated and which do not.
Do I need to open a probate estate if there is a will?
Yes, the law requires it. Assets cannot be transferred just by presenting a will. If you bring a will to a bank where the decedent had a bank account they will not give you any funds from the account. They will tell you to come back with a court order signed by a probate judge.
How do I Get a Will into Probate?
A will is deposited with the Clerk of Court in the Florida county in which the decedent resided. The Clerk of Courts will keep the will on file. The depositing of the will, according to statute, is to be within 10 days of finding out about the death of the decedent.
The depositing of the will is only an initial step. The next step is to open either a formal administration or summary administration in probate court. This is referred to as “opening an estate”.
Once the estate is opened, a judge is assigned. The judge will review the will to see if it is valid. All beneficiaries will be given notice of the proceedings. Once the judge allows the will to be entered into probate, then assets can begin to be transferred. This may happen relatively quickly in a summary administration, or take a bit longer in a formal administration. Read below for information on summary administration and formal administration.
What if there is no will?
People who die without leaving a will are referred to as “intestate”. An estate can still be opened if a decedent was intestate.
Florida has an intestacy statute which provides a schedule of who inherits when there is no will. The statute is based upon the traditional family model. If a person is married, then the entire estate goes to the spouse. If there is no spouse, then the estate is divided among the children. If there are no spouse or children, the to parents. If no parents, then divided among brothers and sisters, etc…
What Documents Are Needed to Open A Probate Estate?
Below are a list of documents which are needed to open a probate estate. The only items that are absolutely essential are the Death Certificate and Will, A and B on the list. Paid funeral bill and paid medical bills, C and D below are essential in some summary administrations, particularly in Broward County.
E through M are not essential to open the estate, and are not filed with the court, but they are documentation which is needed to marshall the decedent’s assets, which must be listed on the documents filed with the probate court.
Death Certificate
A. Will – for Testate Estates
B. Paid Funeral Bill
C. Paid Medical Bill of Final Illness
D. Bank Statements
E. Brokerage Account Statements
F. Stock Certificates
G. Bond Certificates
H. Pension Statements
I. Life Insurance Statements
J. Real Property Deeds
K. Title Certificates for Automobiles, boats, etc…
L. Credit card and medical bills.
Do All Assets Need to Go Through Probate?
No. IRA’s, mutual funds, life insurance, trusts, or any asset which names a beneficiary payable at death do not have to go through probate. This includes real property held as joint tenants with right of survivorship, husband and wife, or a life estate. These assets pass outside of probate, directly to the named beneficiaries. If a person has only assets with beneficiaries, then there may be no reason to open a probate estate at all.
Who Gets Notice of the Filing of a Probate Estate?
Florida law requires that all “interested persons” get notified of the opening of a probate estate. At its most basic, that means that all beneficiaries of a will, or heirs by intestacy have to get notice of the opening of the estate. That means that they need to receive a copy of the probate petition, and a copy of the will if it is a testate estate.
Creditor’s claims in probate:
Unfortunately a person’s debts do not go away when he or she dies. All of the expenses and obligations of the deceased person must be taken care of before the heirs are entitled to their share of the property. Florida’s probate code includes very specific procedures for managing the claims of creditors. Taxes, mortgage payments, funeral bills, condominium fees, and other debts of the decedent all must be addressed. If the money is there, and the claims are valid, then they will probably have to be paid from the estate assets. However, creditors cannot sit idly by. Most of them must file a claim within a certain time limit, or their claims become void.
There are certain assets of the estate which are exempt property which the creditors cannot reach. The decedent’s primary residence, known as homestead, is normally exempt from the claims of creditors.
Two Types of Probate in Florida:
There are two main types of probate in Florida, Formal Administration, and Summary Administration. (There are also a very limited proceeding for very specific property, Disposition Without Administration.)
Formal Administration:
Formal Administration is mandatory for estates with more than $75,000.00 in assets. Formal administration has several steps, and takes a minimum of 5 to 6 months to complete, although it can take longer, depending on the circumstances. A personal representative (known in other jurisdictions as an “executor” or “administrator”) is appointed by the court to act on behalf of the Estate. The personal representative has numerous powers including the power to access bank accounts, sell real or personal property, hire attorneys and accountants, and do anything necessary to settle the estate. A personal representative must be appointed by the probate judge, after giving notice to all beneficiaries.
How Do I Begin Formal Administration?
The first thing that needs to be done is to contact and hire a lawyer. This is not just a suggestion, but an attorney is actually a requirement under Florida law for formal administrations.
You should hire a lawyer with experience in probate administration. The Silverstone law firm has many years of experience in handling Florida estates.
Once you have hired a lawyer, then you will need to provide a death certificate and a will (if the decedent had a will).
You will also need to provide documents relating to all of the assets which the decedent owned at death, such as:
A. Bank Statements
B. Brokerage Account Statements
C. Stock Certificates
D. Bond Certificates
E. Pension Statements
F. Life Insurance Statements
G. Real Property Deeds
H. Title Certificates for Automobiles, boats, etc…
Also, evidence of all known creditors, such as:
A. Credit card bills
B. Medical Bills
C. Auto leases and Auto financing statements
D. Mortgages
E. Evidence of condominium maintenance payments and assessments.
Petition for Administration
The initial document the lawyer will prepare to open a formal administration is the Petition for Administration. This gives names and addresses of the decedent, the beneficiaries and the proposed Personal Representative, who usually signs as the Petitioner.
Getting Appointed As Personal Representative
Acting as personal representative of a probate estate is a serious responsibility. A personal representative can have serious repercussions if they misappropriate or mismanage estate assets. Florida law allows a representative to be compensated for their services from the estate. Having a good probate attorney is essential to anyone who is appointed personal representative of an estate. A good attorney will help you and let you know what you need to do, and how do to it, at every step.
Summary Administration:
Summary administration is a simplified form of probate administration for estates valued at $75,000.00 or less; OR the decedent must have been dead for more than two years, regardless of the value of the property.
In Florida a persons’s primary residence, called “homestead”, does not count toward the $75,000.00. A person can die with a home worth $300,000.00, and $75,000.00 in a bank account, and still qualify for summary administration, if the home was their homestead.
Unlike formal administration, there are only a couple of steps to summary administration, and it can be completed within a couple of months.
Although the law does not require a the hiring of lawyer for a summary administration, it is best to have one, since the process can be confusing and burdensome for someone who is not accustomed to doing them.
Other forms of Probate Adminstration
Disposition Without Administration
Disposition Without Administration is for certain extremely small estates. It requires no formal proceedings. The estate must consist solely of exempt personal property, as defined by law, with a net value of $20,000 as of the date of death and non-exempt property the value of which does not exceed the sum of funeral expenses (up to $6,000) and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
This is a form of administration used only in very narrow circumstances, and does not apply to most estates. It can usually be done without a lawyer. The Clerk of Court usually helps with filling out the forms.
Ancillary Administration:
A decedent who is a resident of another state or country may have assets in Florida, such as a second home. Probate is first opened in the state or country in which they resided. However, if they owned property in Florida, a separate probate must be opened in Florida, which is called “ancillary administration”. Certified copies of the probate documents from the other state or country are filed in Florida, and a new Florida probate estate is opened. The Florida probate continues in the same manner as a normal Florida probate estate (Either by Formal Administration, or, if it qualifies, by Summary Administration).
Admitting Foreign Will to Probate:
This procedure is initiated when a decedent with a will dies in another state, and probate proceedings are opened there, but the decedent owns real property in Florida. A copy of the will from the other state is filed in Florida probate court, and an order is obtained admitting the will to probate in Florida, which passes title to the Florida real property to the beneficiaries in the will.
