Estates, Wills, Trusts & Probate
Probate
There are two types of probate administration under Florida law: formal administration and summary administration. Most of this page will concentrate on Formal Administration.
WHAT IS PROBATE?
WHY IS PROBATE NECESSARY?
Probate may be necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law. Some assets do not require a probate proceeding to transfer ownership. When you retain our firm, we will help you transfer both probate and non-probate assets to the appropriate beneficiaries.
Administration of the decedent’s estate through Probate ensures that the decedent’s creditors are paid or challenged when probate procedures are correctly followed.
WHAT IS A WILL?
A Will is a writing, signed by the decedent and witnesses, in the presence of a Notary Public, that meets Florida law requirements. In a Will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.
WHAT HAPPENS IF THERE IS NO WILL?
Someone who dies without a valid Will dies “intestate.” Even if the decedent dies intestate, the probate assets are rarely turned over to the state of Florida. The state would take the decedent’s assets only if the decedent had no heirs.
If the decedent died intestate, a couple of examples of how the decedent’s probate assets will be distributed to the decedent’s heirs in accordance with Florida Law, not pursuant to the decedent’s wishes.
WHO IS INVOLVED IN THE PROBATE PROCESS?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:
- Clerk of the circuit court in the county of the decedent’s domicile at the time of the decedent’s death.
- Circuit court judge.
- Personal representative (also known as an executor).
- Attorney providing legal advice and services to the personal representative throughout the probate process.
- Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
- Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and, sometimes, federal gift, estate, or generation-skipping transfer tax matters.
WHO SUPERVISES THE PROBATE ADMINISTRATION?
A circuit court judge presides over probate proceedings.
The judge will consider evidence to confirm the beneficiaries’ identities or decedent’s heirs as those who will receive the decedent’s probate estate.
Suppose the decedent had a Will that nominated a personal representative. In that case, the judge will also decide whether the person or institution appointed is qualified to serve in that position. Suppose the nominated personal representative meets the statutory qualifications. In that case, the judge will issue “Letters of Administration,” also referred to simply as “Letters.” These “Letters” are evidence of the personal representative’s authority to administer the decedent’s probate estate.
Suppose any questions or disputes arise while administering the decedent’s probate estate. In that case, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written directive called an “Order.”
WHAT IS A PERSONAL REPRESENTATIVE AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
The personal representative is the person, bank, or trust company appointed by the judge ( which maybe the same person designated in the Will) to be in charge of the administration of the decedent’s probate estate. The term “personal representative” is used in Florida instead of such terms as “executor, executrix, administrator, and administratrix.” The personal representative has a legal duty to administer the probate estate according to Florida law.
The personal representative must:
- Identify, gather, value, and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper to notice potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in administering the probate estate, for example, attorneys, certified public accountants, appraisers, and investment advisers.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
Suppose the personal representative mismanages the decedent’s probate estate. In that case, the personal representative may be liable to the beneficiaries for any harm they may suffer.
WHO CAN BE A PERSONAL REPRESENTATIVE?
The personal representative can be an individual or a bank or trust company, subject to certain restrictions. To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida and is not closely related to the decedent cannot serve as a personal representative.
Individuals are not qualified to act as a personal representative if they are either younger than 18, mentally or physically unable to perform the duties, or have been convicted of a felony.
A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.
WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on the rights and duties under the law and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a Will mandating that a particular attorney or firm be employed as the attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.
HOW LONG DOES PROBATE WORK?
It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the Will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.
HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?
The personal representative, the attorney, and other professionals (such as appraisers and accountants) are entitled to receive reasonable compensation. The personal representative’s compensation is usually determined in one of five ways:
- As set forth in the Will.
- As set forth in a contract between the personal representative and the decedent.
- As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation.
- The amount is presumed to be reasonable as calculated under Florida law if the amount is not objected to by any of the beneficiaries.
- As determined by the judge.
The fee for the attorney for the personal representative is usually determined in one of three ways:
- As agreed among the attorney, the personal representative, and those who bear the impact of the fee.
- The amount presumed to be reasonable calculated under Florida law if the amount is not objected to by any of the beneficiaries.
- As determined by the judge.
WHAT IF THERE IS A REVOCABLE TRUST?
If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee might be required to pay expenses of administration of the decedent’s probate estate, enforceable claims of the decedent’s creditors and any federal estate taxes payable from the trust assets. The trustee of such a trust is always required to file a “Notice of Trust” with the clerk of the Court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.
All of the tasks that must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.
Disclaimer: The material herein represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.