I spend a fair amount of time meeting with potential clients explaining how the probate process works in Florida.
And I realized, I don’t actually have a post on the Florida probate process.
So, here it is; a very short overview of Probate in Florida.
When someone dies, and leaves property, there are three ways property can pass at death: by operation of law, where two or more people own the property as Joint tenants with Right of Survivorship, by beneficiary designation, sometimes called Pay On Death or POD, and by probate.
If two or more people own property as Joint Tenants with Right of Survivorship, when one of them dies their name comes off the ownership. The property automatically passes to the survivor.
If someone has named a beneficiary for an account, once the financial institution is given the death certificate, they will pay or transfer that money over to the people named as beneficiaries.
But if property doesn’t pass by either of these, you are looking at a probate.
Essentially, what happens is the survivors have to consult with a lawyer who will determine if the estate is testate (has a valid will) or is intestate (no will). Then, the lawyer needs to find out what the approximate value of the estate is and whether the estate is likely to owe any money. If the value of the estate is more than a certain amount, or if there are significant bills, then the lawyer will probably recommend “full administration”, where a Personal Representative, which is what Florida calls an Executor, will need to be appointed. The Personal representative is responsible for gathering the assets of the estate, collecting what needs to be collected, working with the lawyer to file paperwork and notify people who need to be notified. Creditors, people who are owed money or might be owed money, need to be told the estate is opened and that they need to put in a claim. The estate is advertised in the local newspaper, and people who stand to inherit something are notified of the probate as well. The personal representative files an inventory, listing the property and estimated values. The personal representative handles the sale of any property that needs to be sold, and towards the end of the probate, the personal representative is responsible for seeing that creditors get paid to the extent that there are available assets in the estate. Depending on the exact facts, there may be additional work that needs to be done; if there is a home, there will probably be a homestead petition; depending on the property and who the survivors are, there may be a petition to exempt certain property, meaning some property will be not available to pay creditors but will go directly to the heirs. If there is a surviving spouse and a will, the surviving spouse may want to file an elective share petition; and if there is a surviving spouse or minor children, a family allowance, to help support the family, may be appropriate. Depending on the case, there may be other things to do; file tax returns, file lawsuits or defend lawsuits. Each case is different; what needs to be done depends entirely on the facts of the case.
All of this is overseen by a judge. At the end of the probate, after the paperwork has been filed, then the money left in the estate is split between the heirs or beneficiaries; who gets what depends, once again, on the facts of the case; whether there is a will, and the exact relationship between the deceased person and the heirs or beneficiaries.
If the estate is small, and if there are not significant creditors, then a Summary Administration may be appropriate; this is sort of a simplified probate; essentially what happens is paperwork is filed saying the person is dead, they left this property, and this is who the property goes to; the judge signs paperwork confirming this, and then the property is transferred directly to the people who get the property. This is a little simpler and somewhat cheaper than a Full Administration but is not always appropriate.
There are a number of complications that can come up and as I’ve emphasized, the facts of the case can change the analysis, but in most cases probate is usually fairly straightforward.
If you have questions about Probate in Florida, particularly Probate in or around The Villages, Florida, please feel free to contact my office.
