Losing a loved one is a terrible thing that we all must face at some point in our lives. When you add in the legal journey of a Florida Probate, this time in your life can become even more challenging to navigate.
You may be wondering whether you need to file a Florida probate, and what the entire process even looks like.
For starters, usually probates are filed when someone passes away with assets in their sole name. So, if a person has a bank account with $10,000 and no “payable on death” beneficiary, it is usually necessary to file a probate.
What is a Florida Probate?
A Florida Probate is the legal process of settling a deceased person’s estate. It does not matter if one had a Last Will or no estate planning documents at all. However, a properly funded Revocable Living Trust will avoid most probates.
The concept of a probate stems from the fact that when someone passes away, it’s important to ensure all their personal finances and estate (meaning their belongings, property, etc.) are protected and distributed to the correct beneficiaries. Probates also involve paying off any pending debts or taxes, sorting any other obligations, and distributing the remaining assets to the deceased person’s heirs or beneficiaries. It is important to keep in mind that you should seek legal advice before paying debts to ensure you even have the obligation to make those payments in the first place.
In Florida, this probate process is broken down into two main types: formal probate and summary probate. (There is a third type that you may initiate on your own without an attorney. It is called a Disposition Without Administration. It has very specific asset limits and guidelines.
Floria Summary Probate
Summary probates in Florida are a simplified version of the formal probate process used for smaller estates under $75,000, or when the person has been deceased for more than two years. Keep in mind that we do not normally count the value of the homestead in determining the value of the estate. A summary is more suited to estates that do not have a long list of creditors. There is no mechanism to object to creditor claims. Thus, to file a summary, it is usually necessary to pay the outstanding bills. Because of this, it is important to analyze which probate should be filed before making any quick decisions.
In a summary probate, a Personal Representative is not appointed and there is no requirement to “publish” notice of the death. Because of this, the summary probate is usually quicker than a formal (four to six weeks) and less expensive.
These Florida probates are a convenient option for those with smaller estates who want to avoid the time and expense of a formal probate process. However, it is worth mentioning again that not all estates are suited for this simplified probate. If the estate is debt-heavy, an analysis must be made as to whether a probate should be filed, and if so, at what time. Timing may be critical in a Florida probate so it is necessary to seek expert advice.
Stages of Florida Probate
The following steps are typically involved in the Florida probate process:
Filing the Opening Pleadings, Will (if there is one), Short Form Death Certificate and Paid Cremation/Burial Bill: After paying the filing fee, opening pleadings are filed along with supporting documentation.
Appointing a Personal Representative: The next step in a Formal Probate is to ask the Court to appoint a personal representative, also known as an executor in other states. This person is responsible for managing the deceased person’s assets during probate, among other things. It is a very important role.
Notifying Creditors and Heirs: The personal representative must notify creditors and heirs of the death and the start of the probate process. “Unknown creditors” are notified via publication in the newspaper.
Gathering Assets: The personal representative must find and gather all of the deceased person’s assets, including bank accounts, property, and other assets. These are usually placed in an estate account.
Paying Debts and Taxes: The personal representative pays any debts, taxes, or other obligations owed by the deceased person’s estate, if necessary.
Distributing Assets: Once all debts and taxes have been paid, the personal representative will distribute the remaining assets to the deceased person’s heirs or beneficiaries.
The Florida probate process can seem overwhelming, especially after a loved one’s death. However, understanding the process and working with a knowledgeable probate attorney can help to ensure that the process is completed smoothly.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.