FLORIDA PROBATE QUESTIONS
1. What is Probate?
Probate is the court-supervised process of gathering the Decedent's (the deceased person) assets (real and personal property), paying estate administration expenses, paying creditors, and distributing the assets to the beneficiaries of the estate.
The Probate Court is also where challenges to a Will or Trust are decided.
2. Why Is Probate Required?
Probate is the legal process of transferring ownership of the Decedent's assets to those legally entitled to receive the assets.
If there is a Will, then the Decedent's assets will be distributed in accordance with the Will. A Will does not transfer assets, it only names who is to receive them.
If there is no Will, Probate will transfer ownership of the Decedent's assets to those persons entitled to receive them according to Florida law, which might not be how the Decedent would have wished.
3. How Is The Probate Process Started?
With limited exceptions, Florida law requires that every Personal Representative must be represented by a Florida attorney.
If the Personal Representative does not start the Probate process, any beneficiary or creditor can do so.
If the Decedent did not have a Will, then a relative or creditor can hire an attorney to initiate the Probate process.
4. What Is A Personal Representative?
A Personal Representative, often called an Executor in other states, is the party nominated in the Will to oversee the administration of the Estate. A Personal Representative cannot represent the Estate until they are officially appointed by the Probate Court.
Subject to the requirements of Florida law, a Personal Representative can be an individual, a bank, or a trust company. Generally, out of state relatives can also serve as a Personal Representative.
5. How Long Does Probate Take?
Estates valued at more than $75,000 generally take up to a year to complete, so there is a lengthy delay before the beneficiaries receive their share. Complicated Estates often take years to administer.
6. How Much Does Probate Cost?
Legal fees vary according to the complexity of the Estate. The minimum recommended fee attorney fee is equal to 3% of the Probate assets, but many attorneys charge more than 3%. Additionally, the Personal Representative is entitled to a fee of 3%; there are Court filing fees, bond premiums, publication costs, etc; and legitimate creditors must also be paid. This means that the beneficiaries will receive far less than they might initially think.
7. Do All Assets Go Through Probate?
All assets owned by the Decedent can be subject to Probate. Generally, assets owned jointly as husband and wife, or joint with right of survivorship, are not subject to Probate. Likewise, assets that have a pre-designated beneficiary, such as life insurance, generally are not subject to Probate.
However, there are circumstances, such as a surviving spouse choosing to take an "elective share" of the deceased spouse's assets, which can make jointly-titled and beneficiary-designated assets subject to Probate.
8. How Are Assets Distributed If There Is No Will?
When there is no Will, Florida law establishes the order of distributing the Decedent's assets. If the Decedent was survived by a spouse and children or grandchildren, then the surviving spouse receives a minimum of 50% of the assets. If the Decedent had no children or grandchildren, then the surviving spouse will receive all of the assets.
9. Is The Estate Obligated To Pay Creditors?
Notifying creditors that Probate has started and that a Personal Representative has been appointed by the Court is one of the primary reasons for Probate. Florida law requires that legitimate debts of the Decedent be paid before making distributions to beneficiaries.
10. Does A Trust Avoid Probate?
A properly formed and properly "funded" Trust can avoid Probate. However, the party named to administer the Trust is entitled to compensation and legitimate creditors are entitled to be paid.
A Trust is a legal entity created by a legal document called a Trust Agreement. The Trust Agreement allows a Trustee to take title to assets owned by the person creating the Trust, who is called the Grantor. If the Trust is properly "funded" by the Grantor, then will be no need for Probate. "Funding" means transferring title of the Grantor's assets into the Trust while the Grantor is alive.
If the Trust is not properly funded while the Grantor is alive, then Probate will still be required to transfer the Decedent's assets to the Trust upon death.
For more information on Probate, Trusts, the Elective Share or Estate Litigation, please call attorney Patricia M. Dockery at (727) 346-6012 to schedule a free 30-minute consultation.
