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Probate Trust Administration
Probate, Guardianship, Trust Administration, Litigation as it relates to Trusts, Guardianship and Probate Probate, Guardianship, Trust Administration, Litigation as it relates to Trusts, Guardianship and Probate
IRS Recovery & Tax Law Monroe County & Palm Beach County

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Probate Administration for Florida:

The word "PROBATE" often instills fear in the unknowing beneficiary.  Yes it is true that probate can be costly, as there are often substantial costs involved.    These costs include filing fees, postage, service and publication fees.  Further, in the majority of cases, a personal representative is required to retain legal counsel to represent him or her, which can pose a substantial cost to the estate.  Due to these factors, it is common and recommended that individuals consult with qualified legal counsel to discuss implementing an estate plan to avoid probate. 

With that being said, there are also benefits to probate.  By initiating a probate proceeding you limit the timeframe in which creditors have to file claims in the estate, ensure court involvement and supervision in carrying out the decedent's testamentary intent and limit the timeframe in which disinherited beneficiaries have to contest the decedent's Will.  Further, the probate process assures that your debts, taxes and expenses are timely and properly paid.

Regardless of whether you initiate a probate proceeding, Florida law requires the possessor of the decedent's original Will to file it with the court within ten days of the decedent's death. This is often a rule that is overlooked and can cause the accrual of unnecessary fees and costs if not complied with. Andrea C. D'Addario Probate Aministration Attorney  

(For more info, see What’s a Probate Estate All About?

Many people think that probate applies to you only if you have a Will. Wrong! The determining factor of whether a probate is required depends how your assets were titled or "owned" at the time of your death and not whether you die with a will (testate) or without a will (intestate).  For example, assets properly titled jointly with right of survivorship, in trust or with a beneficiary designation are not required to be probated. To ensure that your assets are titled properly you should consult with an attorney. 

If probate is necessary it is beneficial to have a Will to ensure that your assets pass to the intended beneficiaries.  The following outlines what occurs if you die with a valid will (testate) or without a valid will (intestate): 

  • With a valid will: If you have a valid will, your will controls how your assets are distributed at your death.
  • Without a valid will: If you die without a valid will or in the event you die partially intestate (which means that certain assets are not governed by your Will) the laws of the state or territory in which you reside will govern the distribution of your assets.
If you want to ensure that your Will is valid or that your assets are transferred in accordance with your wishes, you should seek legal counsel to assist you with your estate plan.  

The probate process

Even though you will not be around to witness what occurs after your death, it is important to understand the process

Types of probate administration

Formal Administration: The formal administration proceeding is initiated upon the filing of a petition with the Court.  Upon filing all required documents with the court, a qualified personal representative is appointed and granted legal authority through "Letters of Administration" to begin administering the estate. Formal administration is often costly, time consuming and can take several months to a year to complete depending on the assets and liabilities of the decedent.  This form of administration is required if the decedent's assets exceed the statutory threshold (approximately $75,000), if a personal representative needs to be appointed or if the estate is indebted.

Summary Administration: Summary administration is an expedited proceeding, which is only available if the decedent's assets are under the statutory threshold (approximately $75,000) OR if the decedent has been deceased for two years or more.  Unlike a formal administration, a summary administration is less time consuming and costly and a personal representative is not appointed.  Summary administration, although a simpler solution, can be problematic if the estate is indebted.      

Ancillary Administration: Ancillary administration is necessary if the decedent was not a resident of Florida but owned assets in Florida.  In such case the Florida probate is considered the "Ancillary Estate" and the proceeding in the state or territory in which the decedent resided is the "Domiciliary Estate".  An Ancillary personal representative is required to effectively transfer the decedent's Florida property to the intended beneficiaries.  This is particularly common in situations in which a decedent owned real property in the State of Florida but resided in another state of territory.

*Summary Ancillary administration is also available if the assets are valued under the statutory threshold.

Disposition of personal property without administration: If there are minimal assets, the value of which are exceeded by the expenses of the decedent's last illness, including funeral expenses, this form of disposition can be used. 

Although the above reflects a general description of each form of administration  in Florida, it is wise to consult with an attorney to discuss your particular fact pattern.  Further, each state, as well as each county, has different procedures and regulations of which must be followed in order to successfully probate an estate.

The many steps of probate administration

Each case is handled differently depending on the assets and liabilities of the decedent, the terms of the Will (if any) and the beneficiaries involved.

The following outline the general steps of the formal probate proceeding:

1) Initial filing of probate documents (the majority of which are required to be filed electronically through a special e-filing portal);

2) Appointment of personal representative and depending on the assets involved either waiver of bond or the requirement to post bond. 

3) Publication and service of notice to creditors;

4) Filing and service of the probate inventory;

5) Resolution of creditors claims (if any) and the estate administration expenses and taxes and obligations of the decedent and the estate; 

6) Distribution of assets;

7) Discharge of personal representative and closing the estate.

Again, this is a general outline of the steps involved in a formal administration.  Every case is different and will likely require additional filings and documents. 

Who serves as my personal representative

If you have a Will, your Will likely includes a provision nominating a personal representative.  If drafted properly, your Will should also include a successor personal representative in the event your nominated personal representative is unable to serve.

If you do not have a Will, Florida law determines who shall serve as your personal representative.  Specifically, the law sets forth a list of individuals who have priority to serve as your personal representative, with a spouse with the utmost priority followed by your children, parents and siblings.

A personal representative is considered a "fiduciary" who is held to the utmost level of professionalism and confidence.  As a result, only those who qualify under Florida law can serve as personal representative.  To qualify, an individual must be 18 years of age, of sound mind and not a convicted felon. There are additional laws that apply if the individual named resides outside the State of Florida and is not a blood relative.

It is important to carefully consider who you intend to appoint as your personal representative, as you ensure a great deal of trust and responsibility in naming a personal representative.

*It is important to note that a Will and the nomination of a personal representative have no effect until the court admits the Will to probate and formally appoints a personal representative.

Creditors Claims

 Florida requires the personal representative to publish notification of the decedent's death in a local newspaper. Further, all potential creditors (anyone who could possibly have a claim against the decedent's estate) is required to be noticed via mail (preferably certified mail, return receipt requested) and proof of such is filed with the probate court.

Creditors are then required to file a claim in the estate within the later of three months of the first date of publication or thirty days from receiving notice.  There is specific information set forth in the Florida Statutes as to the form and manner of filing the claim. 

It is very important to note that a personal representative should be cautious in paying debts of the decedent in which a creditor claim has not been filed.  Counsel should be consulted prior to satisfying any debt of the decedent whether a claim is filed or not.

As mentioned above, the creditors have a limited time in which to file a claim.  If not timely filed, a claim can be barred. 

The Estate Inventory 

Within sixty days of appointment the personal representative must file an inventory of the estate assets and serve the inventory on all beneficiaries (and in certain occasions interested persons).  Proof of service is required to be filed with the court.

The inventory consists of the date of death values of the decedent's assets, both real and personal property.   If in doubt as to the date of death values, or in the event the decedent possessed unique assets such as ownership in a business or rare artwork, it may be wise to get an appraisal to properly value the assets.

The purpose of the Inventory is to advise the beneficiaries (and in some cases interested persons) of the assets of the estate. 

The inventory is a good road map for the personal representative to determine the assets available to satisfy the decedent's obligations. 

Distributing the estate
After all administration expenses are paid and the decedent's debts and obligations are satisfied, the personal representative can begin distributing the assets and closing the estate.  (It is common to make partial distributions at an earlier stage of the probate process if there are sufficient assets to satisfy all potential expenses and claims.  Further, there are some assets which pose a risk to the estate and should be distributed earlier in the probate proceeding, such as a car, motorcycle or other vehicle).

It is strongly recommended to obtain receipts for all assets distributed during the probate proceeding.  There are special forms created to protect the personal representative in the event the assets are wrongfully distributed by the personal representative .   

 
Disclaimer: This web site is designed for general informational purposes only. The content of this site does not constitute legal advice or the formation of a lawyer/client relationship. 

     

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In Palm Beach: 561-362-2366 • Fax: 561-362-2367
Email: andrea@daddario-law.com
13860 Wellington Trace, Suite 38-213 • Wellington, Florida 33414


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