Probate is the legal process of administering and settling a deceased person’s estate. The proceeding is supervised by a court. The process includes gathering assets, paying debts, taxes, and the expenses of administration from those assets, and then distributing the remainder to the persons entitled to them (the “beneficiaries”).
Probate is a complicated procedure, which must be followed explicitly, so that when a beneficiary inherits assets, they will be free from future claims. In the majority of probate cases, an attorney is needed to complete the process in a timely and legally efficient manner. Even if an attorney is not required it is important to remember that the Probate process has many technical rules. Although not always compulsory, hiring a lawyer may help you get results more quickly and efficiently.
Who Can File for Probate
Any creditor or beneficiary of an estate can legally file for Probate. However, if the decedent left a Last Will & Testament (a “Will”), then the Personal Representative named in that Will usually initiates the Probate. On the other hand, if no Will was executed by the decedent, or if it cannot be located, then normally a close relative will file for Probate.
When to File for Probate
It is never too late to file for Probate. There is no actual deadline in the State of Florida. However there may be circumstances that necessitate the probate of an estate within a certain timeframe.
Cost of Probate
The typical cost to probate an estate is 3% of the total estate value for attorney’s fees and 3% for personal representative fees. Our firm may work on an hourly basis or a lower percentage amount if the Probate warrants, resulting in a lower fee.
Existence of Last Will & Testament
The first step after the death of a loved one is to locate the current version of the Will. The Court will usually only accept the original copy of a decedent’s Will, in order to ensure its validity. An authenticated copy of a Will can be admitted to Probate, but this can be a lengthy process, and the copy is not guaranteed to be accepted.
If a person dies with a Will, the Probate Court determines if the Will is valid, hears any objections to the Will, orders that creditors be paid, and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the Will.
No Last Will & Testament
If the decedent does not have a valid Will, the decedent’s estate is considered “intestate” and the decedent’s estate must then be administered through the Probate Court.
The Probate Court appoints a Personal Representative, in the order of preference as established by law. The Personal Representative administers the estate and receives all claims against the estate, pays creditors, and then distributes all remaining property in accordance with the laws of the State. The duties of the Personal Representative are the same as in a Probate proceeding where the decedent had a valid Will – asset gathering, debt payment, and asset distribution.
Hiring a Probate Lawyer
The next step you may want to consider is hiring a Probate lawyer to represent the Personal Representative named in the Will or to represent the estate itself if no Will exists and to guide the estate through the Probate process. The attorney’s job is to 1) arrange for Probate of the Will, 2) file with the court the required documents to move the Will through Probate, 3) represent the Personal Representative in court, 4) arrange for repayment of debts, and 5) coordinate the distribution of gifts according to the bequests made in the Will.
What Happens during Probate
Several notifications are required to be given to heirs, beneficiaries, creditors, and government agencies. Heirs, beneficiaries, and creditors must be notified of the admission of the Will and the opening of the estate, after which they have a limited amount of time to challenge the Will and/or submit claims to the estate. Usually the estate will then obtain a federal identification number for tax purposes because it is considered a separate taxpayer. The Personal Representative will also open a bank account in the name of the estate in which to deposit income and receipts of the estate, and out of which to pay expenses, and make distributions to the beneficiaries.
When all of the distributions to the beneficiaries have been made or are nearing completion, a final report must be filed with the Probate Court that summarizes all of the receipts, disbursements, and distributions of the estate and summarizes all other acts taken by the Personal Representative. A copy is provided to the beneficiaries, who have the opportunity to object to any items in the report.
If the beneficiaries have no objections, the Court will typically approve the closing of the estate, the beneficiaries will sign receipts indicating that they have received their distributions, the Personal Representative will file these receipts, and the Court will discharge the Personal Representative from duty.
If the decedent owned a home that was their primary residence at the time of their demise, steps must be taken, if possible, in the Probate action to protect the home. Homestead can be a very complicated issue in Florida, a single fact can change the outcome of any homestead protection available to the beneficiaries. In Probate, the decedent’s home is exempt from creditor’s claims that do not pertain to the home itself, so long as 1) the home was the decedent’s primary residence at the time of their death and 2) the home was left to one or more beneficiaries who were related by blood or marriage to the decedent. The probate process to protect the homestead requires the notification of creditors, and objections to creditor claims that are not valid, after which a court order will be entered confirming that the home is a “protected homestead” exempt from creditor claims, meaning it passes directly to the beneficiaries named in the Will.
The above description of homestead protection does not apply to a valid mortgage, which is a claim on the property itself. It is important for the beneficiaries to determine early in the Probate process how they are going to handle the mortgage. This is especially true today, as the current state of the real estate market and declining property values mean that the mortgage value is now often higher than the value of the homestead itself.
How to Avoid Probate
It can take as long as six months or a year after the Probate process begins before assets can be distributed. This lengthy process can be avoided by creating an estate planwith provisions that become immediately effective after one’s death. For more information about how we can help you please contact our office.