PROBATE IS LIKELY NEEDED – WHAT IS PROBATE?

Probate is the procedure used to help determine the validity of wills or other documents and oversees the transfer of a person’s assets and payment for any debts when they die (the decedent).  When a loved one passes on, immediately there are many important steps and tasks that must be accomplished.  We have a checklist of items to take care of as well as some suggestions and points of caution.

During Probate, the assets of the estate are distributed according to the wishes of the decedent’s will or trust.  If there is no will, then the assets will be distributed according to state law, to the decedent’s heirs.  Sometimes during this process, wills and trusts are contested – meaning heirs or other interested parties get upset at the proposed distribution of assets and/or payments.  Some assets pass automatically or outside of probate based on their character or how they were titled. There are different types of probate administration, including formal administration, summary administration and ancillary administration.

We’ll tell you what you need to do, give you a checklist and some instructions on how to proceed and we’ll start the process of settling the estate depending on the assets involved and the documents (or lack thereof) the decedent used to pass their assets to their heirs.

FORMAL ADMINISTRATION

Formal administration is used when an estate’s total value of assets exceeds $75,000.  After a loved one’s passing, it is important to establish the existence and the validity of a will or trust.  If the will is valid, the probate court will proceed to distribute assets according to the will.  If there is no will or trust, the probate proceeds as an intestate estate and distrubtes assets according to Florida Statutes and its inheritance laws.

Responsibilities during this period that your attorney will oversee include: managing the distribution of estate assets, including payment of state and federal taxes; hearing any contested claims by creditors or others seeking to collect from the estate; choosing a personal representative when one is not named in the will; deciding which possessions are subject to estate administration; determining a decedent’s true heirs in accordance with  state law; ruling on the legitimacy of any claims outstanding against the estate; determining whether homestead property has been properly devised; and supervising the transfer of assets to beneficiaries named in the will or to the heirs pursuant to Florida law, if there is no will.

Generally, a formal probate can be completed in approximately 6 months, but it will often take longer.  Will contests, payment to creditors, property being sold and non-cooperative heirs/beneficiaries are the majority of causes of delay.

SUMMARY ADMINISTRATION

Summary administration is used when an estate’s total value of assets is less than $75,000, or more than two years has elapsed since the decedent’s passing.  Exempt assets such as the decedent’s homestead are not included in the calculation of the estate’s value.

Your attorney will submit all of the required documents to the court at one time adn the court will enter an order (prepared by your attorney) as to who is entitled to the assets.  No personal representative is appointed during this process.  The court order is then used by the heirs to claim ownership of bank accounts and other assets of the decedent.

ANCILLARY ADMINISTRATION

Florida Ancillary Estate Administration is used when a non-Floridian dies owning assets, usually real estate, in the State of Florida.  Ancillary probate proceedings may either be formal or summary, depending on the value of the assets.  This process is generally treated similarly to a Florida Probate, but will require documents from the decedent’s probate proceedings in their home state.