When a person dies owning property in their names only, and they have not set up a revocable living trust, the title or ownership of their property must be transferred to another person or persons. If they die with a will (i.e., “testate“), the property must be transferred to their beneficiaries named in the will.
If they die without a will (i.e., “intestate“), the property must be transferred to their heirs at law, which are designated by statute and are usually their closest family members. In either case, only a court can authorize these transfers of property ownership. That court is called the probate court.
The process by which you apply to the probate court to transfer the property is commonly known as “probate.” If there is a will, the will is submitted to the court so that it can determine if it is a valid will, whether it has been superseded by a later will, etc.
The court appoints a personal representative (or “executor“), who is named by the deceased in the will, to handle the administering of the deceased’s “estate,” which refers to all the property the deceased owned at death in their name only. Administration includes taking an inventory of the decedent’s property, and filing various public notices of the probate proceedings to reach anyone who has a claim against the estate or who objects to the will.
If there is no will, the court also appoints a personal representative (or “administrator“) to handle the estate. If the court appoints a personal representative due to there being no will, that appointment is often contested among several family members.
We represent personal representatives of probate estates in Florida, and assist them in commencing the probate case, filing the necessary public notices and inventories of estate assets, and arranging for the final distribution of estate assets. Because every estate is different, our legal fee depends on the extent and complexity of the particular probate case, so we normally undertake probate administration on an hourly-fee basis, rather than for a fixed fee. Our hourly rate is $250.00. We require an initial deposit of $4,500, and and we bill the client on a monthly basis during the course of the probate case from that deposit account. Personal representatives find it very efficient and convenient to use our Virtual Law Office feature, which permits the secure and confidential exchange of estate documentation during the probate case.
Florida’s Probate SystemBelow is an overview of the three ways to settle an estate in Florida, from the simplest and least expensive to the most complicated and costly.
A note about wills: Whether or not probate will be necessary, Florida law requires that anyone who has possession of a will must file it with the local circuit court within 10 days of learning of the death. If a probate court proceeding is necessary, the court will determine whether or not the will is valid.
• Property held in joint tenancy by more than one person—for example, a house owned by a couple, or a bank account shared by more than one person;
• Assets for which the person designated a beneficiary—for example, a POD bank account, a retirement account, or life insurance proceeds; and
• Assets held in a living trust
Disposition of the estate without administration may only be used when:
• the deceased person did not leave any real estate, and
• the only assets are either exempt from creditors’ claims or don’t exceed the amount of final expenses.
To request reimbursement, you file a form called “Disposition of Personal Property Without Administration,” which is available from the clerk of the court and on many Florida circuit courts’ websites. There’s a small filing fee; call ahead or check the court’s website to find out the exact cost.
The document must state how much you’ve spent, and you must document those expenses by submitting itemized bills and receipts for funeral bills and for medical expenses that were incurred during the last 60 days of the deceased person’s life. You must also state exactly which assets (a bank account, for example) you are requesting payment from. A certified copy of the death certificate must accompany the request. If there’s a will, it must also be filed with the local circuit court.
• the death occurred more than two years ago, OR
• the value of the probate estate—that’s all the property that would have to go through probate, so it excludes the nonprobate assets described above—is not more than $75,000.
To start the summary administration process, the person who was nominated in the will to be executor, or anyone who inherits property, files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition. If any beneficiary doesn’t sign the petition, you must formally deliver (serve) that person with notice that you have filed the petition. Fla. Stat. § 735.201 (2014).
In the petition, you state that the estate qualifies for summary administration, list the deceased person’s assets and their value, and state who inherits which assets.
The court doesn’t appoint a personal representative (executor or administrator) for the estate. Instead, the court, if it determines that the estate qualifies for summary administration, issues an order, releasing the property to the people who inherit it. You might use this court order to show a bank, for example, that you are the rightful inheritor of the funds in an account it holds.
The court issues a document called Letters of Administration, which gives the personal representative authority to settle the estate. If there’s a will, it must be filed with the court and proven valid. This may be done by having the witnesses to the will give statements, under oath, about its validity. Or, if the will is “self-proving,” it’s enough to submit the document itself. Under Florida law, a will is self-proving if the witnesses, when they watched the will-maker sign the will, signed a statement in front of a notary public. Fla. Stat. § 733.201 (2014).
Under the court’s supervision, the personal representative gathers and inventories assets, pays debts and taxes, and distributes what’s left to the people who inherit it. The personal representative must submit a final accounting to the court, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. Anyone who objects to the accounting can object in court.
After everything has been distributed, the personal representative files evidence with the court, and asks that the estate be closed. The court issues an order closing the estate and relieving the personal representative of further responsibilities. The entire process generally takes six months to a year.
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