FREQUENTLY ASKED QUESTIONS
What is Probate?
Probate administration is a court process to distribute the assets of a deceased person.
· Assets are collected, creditors are paid and beneficiaries receive whatever remains.
· Assets = Real Estate or Personal Property
· Two kinds of “Probate”: Summary & Formal Administration
· The existence of a Will does not eliminate the need for probate
· In Florida, “Personal Representatives” are in charge of “probating” the estate
· Personal Representatives have attorney representation (attorneys do most of the work)
What if there is no Last Will & Testament?
If there is no Last Will & Testament (Will), then the assets may pass by what’s called “intestate succession”. Intestate means that there is no Will. Florida Statutes set forth who is entitled to inherit estate assets if the deceased died without a Will.
How do I access a Safe Deposit Box?
Typically, by presenting a court order authorizing inspection of the safe deposit box and/or Letters of Administration (LOA’s are actually court orders as well.)
What are “Letters of Administration”?
Letters of Administration are court orders issued as part of a formal administration. LOA’s authorize the personal representative to begin administering the estate, including but not limited to, discussing financial details with banks and brokerages. It is not possible to get Letters of Administration without opening an estate in probate court.
What is Formal Administration?
Formal administration is the traditional form of probate in Florida. A personal representative (executor) is only appointed in formal administration.
What is Summary Administration?
Summary Administration is an abbreviated form of probate typically used when assets are valued at $75,000 or less (not including homestead value) or more than 2 years have passed since date of death. A personal representative is not appointed in Summary Administration. It is sometimes referred to as “small estate administration”.
How much does probate cost?
Other than attorneys’ fees, there may be costs/expenses for:
· Case Filing Fees ($345-400)
· Publication of a “Notice to Creditors” (range: $100-200)
· Recording of Orders
· Certification of Orders
· Postage and/or FedEx
· Costs of ordering documents (death certificates, copies of Wills..)
Do I need to come to court in Florida for probate?
Generally, no. Uncontested probate – where there is no dispute over the outcome of the case – will not require your presence in Florida. If an estate is contested, you may need to attend a hearing but your attorney may be able to appear without you. Phone hearings are also permitted in many cases.
The Will says I am the Personal Representative. Do I need probate?
Maybe. This is a two part question:
1. The fact that you’ve been nominated as personal representative doesn’t automatically make you the personal representative. A probate court must appoint you the personal representative.
2. The necessity of probate is determined by the ultimate goals. If real estate or personal property is still titled in the name of the decedent, then probate may be necessary.
What if I start probate too soon?
Generally speaking, you can start probate whenever you’re ready. Only you know how soon you want to move forward. However, there are certain situations where starting probate too soon may expose the estate to creditor claims you might be able to otherwise avoid. Once a probate case is opened, creditors can stake their claim. Note however, there are many assets that are exempt from the claims of creditors!
Do I actually need probate?
This is impossible for us to answer without a consultation but the general rule is if there are no assets “stuck” in the deceased’s name, then you might not need probate. Assets that are held jointly with a spouse or which have designated beneficiaries typically pass on to the heir without the necessity of probate. However, there are many other considerations that may determine if probate is truly necessary. Since every case is different, we highly recommend that you talk to an attorney to analyze your case.
What if there are not enough assets in the estate to pay all of the deceased's debts?
Obviously there will not be any inheritance to the heirs or beneficiaries, who receive assets only if all debts are paid. Florida law has a stated priority of claims, in which some claims (such as funeral expenses and final medical bills) come ahead of others. Most important in this day of “living trusts,” Florida law allows the creditors to reach assets of the deceased which were placed in certain types of trusts, and requires those trustees to use trust assets if necessary for estate expenses and claims. Agreeing to serve as personal representative does not obligate one for the debts of the deceased; they are obligations of the estate, to the extent there are assets to pay them, but becoming an executor does not make those debts your own.
What is the average length of time to complete probate?
Unless there are complications or disputes, most nontaxable estates take between six and ten months for formal administration and four to five weeks for a summary administration. Taxable estates cannot close until the IRS signs off on the Estate Tax Return 706, which has to be filed within nine months after the date of death and often takes that long to prepare. Taxable estates are doing well to close in two years. However, in many taxable estates the work is primarily done in the first nine months, and the rest of the time is spent mainly waiting for IRS review and approval to close the estate. For the IRS publication on estate tax, review this IRS website.
Do I need a lawyer for Florida probate?
Yes, in almost all cases you will need an estate lawyer for Florida probate. Even when an estate lawyer is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer. Florida's system is too complex for most personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. In addition, judges in the state require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, executors in Florida cannot count on the court clerk's office to guide them through, as they might in some other states.
Why can't I just record the Will to change the title to my parent's property in Florida?
Title insurance underwriters in Florida generally do not recognize a recorded will as sufficient to convey title, and for good reasons. First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the deceased. Second, there are situations in which the property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.
Is it ever "too late" to start probate?
No, there is no deadline to open a probate in Florida. However, there is a practical limit in some family situations, because over enough time there may be several probate administrations needed due to the deaths of the initial heirs and even children of the heirs.
Does Florida collect an estate tax?
At present, no. However, if a Florida estate must file a federal estate tax return, it must also file a Florida return even though no tax is owed.
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After reading the answers to these frequently asked probate administration questions, you may still feel unclear or perhaps you found yourself with new estate-related questions - contact Grimaldi Law Firm today.