When a person dies with assets that are not all automatically transferred to beneficiaries via an estate planning tool such as a living trust or life insurance, those assets will generally need to be distributed to the beneficiaries through the probate process. This is the case regardless of whether the deceased had a will in place. The probate process in Florida can be lengthy and complex, and interested parties, as well as the personal representative of an estate, may well need to employ the services of an experienced probate attorney to handle the probate matters more easily and quickly.
In Florida, there are several procedures that can apply in probate. The first is Formal Administration, which this article will cover. Alternatives to Formal Administration include Summary Administration, which can apply when the total assets subject to probate is less than $75,000, and Disposition Without Administration when the value of the assets is less than the cost of funeral expenses and recent medical expenses. Below is an overview of the Formal Administration probate process in Florida.
A PERSONAL REPRESENTATIVE (EXECUTOR) IS APPOINTED
In Florida, the probate process will be overseen by a Florida Circuit Court Judge, but the work of actually paying off debts and distributing assets will be handled by a Personal Representative or Executor as the position is often called.
If a valid will is in place which names the Personal Representative, the court will appoint that person to fulfill that role, assuming no valid objections take place. If there is no will, the court will appoint a Personal Representative. This might be a spouse, family member, or trusted individual or business entity.
A WILL MAY BE ADMITTED TO PROBATE COURT
If the decedent (the person who passed) created a will, then a party will need to submit that will to the court to determine whether it is valid and whether it is the most recent will or codicil in place. In most cases, there will not be an argument over the validity of a will, but, when it does occur, it is called a will contest.
In a will contest, an interested party (such as a beneficiary of a previous will that was later replaced) might argue that one will should prevail over one another, based on a number of arguments. These arguments could include that a later will was the product of undue influence or was forged. The court will rule on which will should be admitted and used to distribute assets.
If there is no will in place, then the court will look to Florida's laws of intestacy to distribute the assets. Under the state laws, the assets will be distributed based on the living heirs that have survived the decedent, which can include a spouse, children, siblings, and parents, among others.
THE PERSONAL REPRESENTATIVE PAYS OFF LIABILITIES
Before the assets are distributed to beneficiaries, it will be necessary for the personal representative to pay off any remaining liabilities belonging to the decedent. These include payments to creditors, such as credit card companies and loan holders. It is the personal representative's responsibility to diligently seek out creditors, and creditors as well have an obligation to present their claims in probate court. Any remaining taxes will also be paid by the personal representative from the estate.
Note again that a personal representative is strongly encouraged to work with an attorney throughout this process. Both the personal representative and the attorney should receive compensation from the estate itself.
GIFTS AND BEQUESTS ARE DISTRIBUTED
After claims are paid off, the personal representative will then distribute assets to the beneficiaries of the estate, which can be those listed in the will, those eligible under the laws of intestacy, or a combination of both (surviving spouses and minor children of a decedent may be able to claim assets even if they were not named in the will).
Issues can arise here over a number of issues, such as locating specific pieces of property named in the will, potentially providing substitute gifts when such property is gone or missing, and distributing assets when a beneficiary has died or the total amount of property in the estate does not cover the total amount listed in the will.
AVOIDING THE PROBATE PROCESS
The probate process can be lengthy and costly for all involved, but there are steps that a person can take in their life to avoid the hassles of probate later. Speak to an estate planning attorney about these options, which can include revocable and irrevocable living trusts, life insurance, and other options.
CONTACT RYAN MYNARD TODAY ABOUT YOUR PROBATE NEEDS IN FLORIDA
If you are currently facing a probate-related issue or would like to discuss ways in which to avoid probate through the estate planning process, contact Florida estate planning attorney Ryan Mynard at 850-683-3940 today to get started.