Probate is a legal process that identifies and gathers the decedent’s (i.e., a deceased person) assets, pays the decedent’s debts, and distributes the decedent’s assets to his or her beneficiaries. There are two types of probate administration in Florida: summary administration and formal administration. Summary administration is a simplified probate process that is available when a decedent has been dead for more than two years and all the decedent’s creditors are barred from recovering his or her estate. Formal administration is Florida’s traditional form of probate and is the primary focus of this guide. In addition, there exists a non-court-supervised administration proceeding called disposition of personal property, but it is only available in limited circumstances.
Probate Assets
Estate administration solely applies to probate assets. Probate assets are assets solely owned under a decedent’s name upon his or her death or owned by a decedent and one or more co-owners without a provision for automatic ownership transfer at death. Examples of probate assets include:
- An investment or bank account solely held in the name of a decedent
- A life insurance policy, individual retirement account, or annuity contract that is payable to a decedent’s estate
- Real estate that is titled in the sole name of a decedent
- Real estate owned by a decedent and another person as tenants in common (unless it is homestead property)
The Importance of Probate
Probate is sometimes needed to transfer ownership of a decedent’s probate assets to his or her beneficiaries. When a decedent leaves a valid will, the court admits it to probate to transfer ownership of the decedent’s probate assets to his or her named beneficiaries. In addition, when a decedent dies without a will, probate may be necessary to pass ownership of the decedent’s probate assets to those entitled to receive them pursuant to Florida law. In addition, through the probate process, a decedent’s estate can ensure that his or her creditors receive any owed money.
Last Will and Testament
A last will and testament, also known as a will, allows a testator (i.e., a person who makes a will) to pass along his or her probate assets to the named beneficiaries at death. Through a will, a testator can also designate a personal representative to administer his or her probate estate. In addition to meeting other requirements, a will in Florida must contain the signatures of a testator and two witnesses to be valid.
Dying Without a Will
When someone dies without a will, he or she has died “intestate.” When a person dies intestate, all that person’s assets are passed on to his or her closest relatives in an order established by statute. In Florida, the first person to inherit when a person dies intestate is his or her surviving spouse. The surviving spouse also inherits the entire estate if the decedent did not have children. Next in line are the decedent’s children. However, if the decedent’s child died before the decedent, then the deceased child’s children, the decedent’s grandchildren, inherit the estate portion that would have gone to the decedent’s child. However, the decedent’s children must be biological or adopted to fall into this category. If the decedent has no surviving spouse or children, then the decedent’s parents inherit his or her assets. Finally, in situations in which none of the above individuals are living, the decedent’s brothers and sisters divide his or her assets.
Parties Involved in the Probate Process
Depending on the situation, any of the following parties may be involved in Florida’s probate process:
- The circuit court clerk in the county where the decedent domiciled at the time of his or her death
- The circuit court judge
- The personal representative of the decedent’s estate
- The attorney working with the personal representative
- Parties filing claims for debts owed by the decedent
- The Internal Revenue Service (IRS) if the decedent owes federal taxes
Where to File Probate Documents
A will’s custodian must file the original copy of the will with the appropriate court clerk within 10 days of receiving notice that the testator has died. No fee is required to deposit a will with the court clerk. However, a filing fee must be paid to open a probate matter. The clerk then assigns a file number and keeps an ongoing record of all documents filed concerning the probate estate.
Probate Administration Supervision
After a probate case has been opened, a circuit court judge is assigned to preside over all probate proceedings. The judge then reviews evidence to determine which beneficiaries or heirs will inherit the decedent’s probate estate. In addition, if the decedent has named a personal representative in his or her will, the judge will decide whether the named individual is qualified to serve in that position. If the judge determines that the personal representative is qualified, then he or she will issue administration letters, which are evidence of the personal representative’s authority to administer the decedent’s probate estate.
Personal Representative
In Florida, the term “personal representative” is synonymous with terms like “administrator” and “executor.” The personal representative of a probate estate has a legal duty to administer the estate pursuant to Florida law. The personal representative has many duties, including:
- Identify, gather, appraise, and protect all probate assets
- Publish a notice to creditors in the manner required by law
- Serve an administration notice
- Conduct a thorough search to locate the decedent’s creditors and notify them of the time by which they must file claims against the decedent’s estate
- Object to improper claims and defend lawsuits brought pursuant to such claims
- Pay valid claims
- File required tax returns and pay any taxes owed
- Hire professionals to help with the administration of the estate (e.g., appraisers, attorneys, certified public accountants, and investment advisers)
- Pay all fees and expenses related to administering the probate estate
- Pay all statutory amounts owed to the decedent’s surviving spouse or family
- Distribute the probate estate’s assets to the decedent’s beneficiaries
- Close the probate estate
Qualifying as a Personal Representative
A personal representative can be a person, a trust company incorporated under the laws of Florida, or a bank or savings and loan that is qualified and authorized to exercise fiduciary powers in the state of Florida. To qualify as a personal representative, an individual must be a Florida resident or, regardless of the individual’s state of residence, a sibling, spouse, child, parent, or another close relative of the decedent. A person who is not a Florida resident and is not closely related to the decedent is not eligible to serve as a personal representative. A person may not act as a personal representative if he or she is under 18 years old, physically or mentally unable to perform personal representative duties, or a convicted felon.
Appointing a Personal Representative
If a decedent dies with a will, the case judge will appoint the person or institution named in the decedent’s will to serve as the personal representative if the named person or entity meets the qualifications discussed above.
If a decedent dies without a will, his or her surviving spouse has the first right to be appointed as the personal representative of the decedent’s estate. If the decedent was unmarried at the time of his or her death or if the decedent’s surviving spouse does not want to be the personal representative, the person or institution selected by the majority of the decedent’s heirs has the second right to fill the role. However, if the decedent’s heirs fail to reach an agreement on who should serve as the personal representative, the judge will decide following a hearing.
Personal Representatives and Legal Representation
Due to the complicated nature of the probate process, the person or entity chosen to serve as the personal representative of a decedent’s estate must seek legal representation. Legal issues are bound to arise during the probate process, and they can be difficult to resolve without a legal background. In addition to addressing novel legal issues, an experienced attorney will advise the personal representative of his or her rights and duties under Florida law and represent him or her in all probate estate proceedings. However, the personal representative’s attorney does not represent the decedent’s probate estate beneficiaries.
An Estate’s Obligations to Estate Creditors
One of the main purposes of the probate process is to ensure that a decedent’s creditors receive any money owed to them. An estate’s personal representative must give notice of the probate proceeding to all the decedent’s known or reasonably ascertainable creditors. Such a notice allows a decedent’s creditors to file claims to recover debts accumulated by the decedent before his or her death. Creditors who receive proper probate notice typically have three months to file a claim with the appropriate circuit court clerk. After a creditor files a claim with the circuit court clerk, an estate’s personal representative or other interested parties may file an official objection to the claim. A creditor that files an objection must also file a separate lawsuit to pursue the claim. When a decedent has legitimate debts, such as taxes, proper claims, and administration expenses of the probate estate, they must be paid before the decedent’s beneficiaries receive their distributions from the estate. The personal representative must file a report with the court to advise it of any claims filed in the probate estate, and the court will not permit estate closure until such claims have been paid or disposed of.
Taxes and Probate
Two significant tax consequences result from a person’s death: (1) it ends the decedent’s last tax year to file the decedent’s federal tax return, and (2) it establishes the decedent’s estate as a new tax entity. Depending on the circumstances, an estate’s personal representative may have to file one or more of the following:
- The decedent’s final federal tax return reporting the decedent’s income for the final year of his or her life
- One or more forms reporting the estate’s taxable income
- A gift tax form reporting any gifts made by the decedent before his or her death
- Depending upon the value of the decedent’s gross estate, an estate tax return form reporting the decedent’s gross estate
- Other returns related to the decedent’s federal tax obligations
An estate’s personal representative is responsible for paying amounts owed by the decedent or the decedent’s estate to the IRS. Taxes owed to the IRS are normally paid from probate assets in the decedent’s estate, not the personal representative’s assets. However, depending on the circumstances, a personal representative may be liable for an estate’s unpaid taxes if he or she fails to properly pay them.
If an estate has no federal tax obligations, then the final accounting and other documents required to close the probate estate are due within one year after the court issues letters of administration to the estate’s personal representative. However, this period can be extended if necessary.
If an estate is required to file a federal estate tax return, then the personal representative must file the return within nine months after the date of the decedent’s death. However, this period can be extended for an additional six months if necessary.
Regarding state taxes, an estate in Florida does not have any tax filing or payment obligations to the state. However, if the decedent owed Florida intangibles taxes for any year before January 1, 2007, the personal representative must pay such taxes to the Florida Department of Revenue.
The Rights of a Decedent’s Surviving Family Members
A decedent’s surviving children and spouse may be entitled to receive probate assets from the decedent’s probate estate even if the decedent excluded such individuals from his or her will. Under Florida law, a decedent’s surviving spouse and certain children are protected from total disinheritance.
For example, a decedent’s surviving husband or wife may have rights to the decedent’s homestead property. In addition, a surviving spouse may have the right to claim an elective share of the decedent’s probate estate. In Florida, an elective share is 30 percent of the decedent’s assets, including non-probate assets. A decedent’s surviving spouse or children may also have the right to claim a family allowance before the final distribution of the decedent’s estate assets, and the right to exempt property that will go to them instead of creditors in satisfaction of claims against the decedent’s probate estate. However, under Florida law, a spouse may waive his or her right to a family allowance, elective share, or exempt property in a pre-marital or post-marital agreement.
In addition, if a decedent got married or had children after the date of his or her last will and failed to provide for his or her new spouse or children, then any omitted family member may be entitled to receive a share of the decedent’s probate estate.
Probate Process Length
The probate process length varies depending on several factors. Each estate has its unique issues and challenges, which can affect the probate process completion time. For example, before settling a probate estate, a personal representative may have to resolve a creditor’s claim, address a lawsuit filed to challenge a will’s validity, or sell real estate owned by the decedent. These situations can affect the probate process length. However, even if none of the aforementioned issues are present, all probate estates must remain open for at least the three-month creditor claim period. Therefore, it is typical for a simple probate estate, with few issues, to take around six months to complete.
Fees for Personal Representatives and Other Professionals
Professionals who assist with probate are entitled to be paid for their work. Specifically, the personal representative, the attorney, appraisers, accountants, and other professionals involved in the probate process are entitled to receive reasonable compensation for their services. The amount owed to a personal representative is presumed to be reasonable as calculated under Florida law if an estate’s beneficiaries do not object to the amount. The compensation owed to an estate’s personal representative is usually determined in one of the following ways:
- As provided in the will’s terms
- As provided in a contract between the decedent and the personal representative
- As agreed between the personal representative and those responsible for the personal representative’s compensation
- As set by the judge
Similarly, the compensation paid to a personal representative’s attorney is presumed to be reasonable as calculated under Florida law if an estate’s beneficiaries do not object to the amount. The fee for a personal representative’s attorney is usually determined in one of the following ways:
- As agreed between the personal representative, the attorney, and those responsible for the attorney’s compensation
- As set by the judge
Alternatives to Formal Administration
Florida law allows for several alternative probate procedures other than formal administration, including summary administration and disposition without administration.
Summary probate is typically only an option if the value of an estate subject to the probate process in Florida is $75,000 or less, and either the decedent’s debts have been paid or the decedent’s creditors have no objections. Anyone who receives estate assets in this type of proceeding remains liable for claims against the decedent for up to two years following the date of the decedent’s passing. In addition, summary probate is available if a decedent has been dead for over two years and his or her estate has not undergone the probate process.
Disposition without administration is available if an estate’s probate assets consist only of the following:
- Property that is classified as exempt from the claims of the decedent’s creditors by applicable law
- Non-exempt personal property, the value of which does not surpass the decedent’s funeral expenses and all necessary and reasonable hospital and medical expenses incurred in the last two months of the decedent’s last illness (if applicable)
Revocable Trust
If a decedent, before his or her death, established what is commonly called a “revocable trust,” a “revocable living trust,” or a “living trust,” the trustee may be required by law to pay enforceable claims of the decedent’s creditors, administration expenses of the decedent’s probate estate, and any federal estate taxes owed from assets in the trust. A trustee is required to file a “notice of trust” with the court clerk in the county where the decedent lived at the time of his or her death. The notice of trust contains information about the decedent’s identity as the grantor or settlor of the trust and the trustee’s identity. The purpose of the notice of trust is to provide legally sufficient notice to the decedent’s creditors of the trust’s existence and of their rights to enforce claims they may have against trust assets.
A revocable trust’s trustee must perform all the tasks that are required to be performed by a personal representative in connection with the probate estate administration. However, a trustee generally does not need to file the same documents with the court clerk that a personal representative is required to file in connection with the probate estate administration. In addition, if a probate proceeding has not commenced, then assets that make up a decedent’s revocable trust are subject to a creditor claim period of two years rather than the non-claim period of three months that is available to a personal representative. The assets contained in a revocable trust are considered a part of the gross estate to determine an estate’s federal tax liability.
Contact an Estate Administration Attorney
At Upchurch Law, Florida probate administration attorney Thomas Upchurch and his staff are here to assist you with all aspects of probate and estate administration, including identifying all estate assets, providing notice to creditors, working with creditors, and distributing assets to the proper beneficiaries. We service Central Florida and North Florida areas, including Jacksonville, Daytona Beach, Deland, Port Orange, Orlando, Ormond Beach, Palm Coast, Saint Augustine, and Tampa/St. Pete, Titusville and throughout the great state of Florida. Please contact us today to schedule a free initial consultation.
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