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What is Probate?
Probate is the process of identifying and gathering the assets of a deceased person, paying their debts, and distributing assets to their beneficiaries. In general, the deceased person's assets pay the probate proceeding’s cost, funeral or final expenses, then their outstanding debts. The remainder of the assets are distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a third type called “Disposition of Personal Property Without Administration.”
Probate is necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. The person leading this process is not a Judge, but instead the "personal representative" the individual designated in a will to handle the final affairs. If the decedent left a valid Will, the Court will admit the Will and follow its instructions to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, Florida law provides specific guidelines for how the Court will order assets to be transferred. Some assets do not require a probate proceeding to transfer ownership.
Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
THE PROBATE PROCESS
Transition and Disposition
Attorney Consultation and Selection
Attorney Consultation and Selection
The Probate process begins far ahead of any court filings. It begins when the decedent transitions and enters funeral or crematory care. The next-of-kin and personal representative should begin gathering important documents such as insurance policies, their will and/or trust, and will receive the decedent's death certificate. These will be important for future events.
Attorney Consultation and Selection
Attorney Consultation and Selection
Attorney Consultation and Selection
Soon after, if not before disposition, the personal representative needs to consult with and select a Probate attorney. The attorney will review the documents gathered and assist with time sensitive initial steps such as filing the will or notice of trust, locating heirs, and ensuring the will or trust was drafted properly.
Opening Probate
Attorney Consultation and Selection
Administering the Estate
The Probate process in court begins with a petition for administration including all important documents and a request for the personal representative to be formally appointed. Once the Court enters its approval of the petition and appoints the personal representative, the major work may begin.
Administering the Estate
Administering the Estate
Administering the Estate
Administering the estate includes providing notice to creditors, providing an inventory of estate assets, paying creditors, and providing an accounting. Each of these steps has its own timeframe and tasks involved. Most of the legwork is completed by the personal representative, while the legal work and presentation to the Court is completed by the attorney.
Seeking Final Orders
Administering the Estate
Seeking Final Orders
Once the accounting step is completed, and the Court has issued its approval, the personal representative may distribute the decedent's assets and request to close the estate.
Closing the Estate
Administering the Estate
Seeking Final Orders
The Estate is closed with a court order discharging the personal representative and approving of the distributions. This step brings finality to the process.
How long does this process take?
From open to close, the Probate process in Florida generally takes 6-9 months. However, if there are contests, disputes, or disagreements, or heirs cannot be located, the process may take longer.
Is this expensive?
Between court costs and attorneys fees, Probate can become costly. The Florida Statutes provide a guideline of reasonable fees, which are provided below.
- $1,500 for an estate valued at $40,000 or less
- +$750 for an estate valued at more than $40,000 but not more than $70,000
- +$750 for an estate valued at more than $70,000 but not more than $100,000
- 3% of any value between $100,000 and $1 million
- 2.5% of any value between $1 million and $3 million
- 2% of any value between $3 million and $5 million
- 1.5% of any value between $5 million and $10 million
- 1% of any value above $10 million
For example, if Grandpa Bob passes away and his assets include: homestead property worth $300,000.00, a vacation condominium worth $150,000.00, a checking account with a balance of $3,500.00 and a savings account with a balance of $25,000.00, the value of his estate is $178,500.00 (the homestead property is not included). A reasonable attorney's fee to probate Grandpa Bob's estate is $5,355.00 (3% of $78,500 + $1,500 + $750 + 750). If the personal representative pays the attorney upfront or on an hourly basis, they will be entitled to reimbursement at the conclusion of the proceedings from the estate's assets.
Will family and friends have to go to court and testify?
It is very rare for friends and family to need to testify in probate court, and generally will only occur if there is a genuine dispute which the Court cannot resolve without hearing from the persons affected.
Can I opt out of this process?
While friends and family may simply decide not to open probate for a loved one, or not be aware of the need for this process, there is no way under Florida Law to opt out or declare that you do not want your assets to go through probate. What you can do is utilize options for how your assets are held or managed so they become non-probate assets.
PROBATE AND NON-PROBATE ASSETS
PROBATE REQUIRED
TRANSFER ON DEATH
TRANSFER ON DEATH
- Real Property held in personal name or as tenants in common
- Banking, brokerage and financial accounts with no joint owner or pay-on-death
- Certain vehicles, vessels, and equipment
- Life insurance payable to the decedent or their estate
- High value personal property, heirlooms, and collectables
TRANSFER ON DEATH
TRANSFER ON DEATH
TRANSFER ON DEATH
- Real property held in a trust, as joint tenants with rights of survivorship or tenants by the entireties
- Personal property, heirlooms, and collectables held in a trust
- Banking, brokerage, and financial accounts with joint owners or pay on death provisions
- Life insurance payable to a specific person, trust, or entity