PROBATE

If your spouse or parent has died while residing in Florida and has left behind assets that were not placed into a trust, you will probably have to settle his or her estate through probate.

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Probate and estate administration are the process through which estate assets are transferred after death. If probate avoidance planning has not been implemented prior to death, the state will require a probate court proceeding if the deceased was a resident of the state of Florida or if the decedent owned assets in the state.

During the probate proceeding, the decedent’s appointed personal representative manages assets, pays any debts, files required tax returns and various court documents, and distributes the estate assets. However, the court may at any time require the process to be supervised. In a supervised probate, the probate judge must approve every details of the estate administration.

The Hershey Law Firm, P.A. will help carefully guide families through the process. The first step family members should take after the death of a loved one is to locate the current version of his or her will. If no will exists, the estate still must go through probate if the decedent owns assets in his or her name alone.

Probate can be a lengthy, costly, and public process, many people choose to avoid.  It typically takes between six months and a year after the probate process begins before assets can be distributed. Please take a look at The Hershey Law Firm’s legal strategies to help avoid probate.

TYPES OF PROBATE 

Disposition without Administration—(No Probate)

When the deceased person leaves very little behind, the person who paid for the final expenses (funeral and expenses of the last illness) will be reimbursed from the assets of the estate.

This process can only be used when:

  • The deceased person did not leave any real estate; and
  • The only assets are either exempt from creditors claims or do not exceed the amount of final expenses.

Ancillary Administration

This proceeding is used when the decedent is not a resident of Florida but who owned real property in Florida. The probate proceedings from the state of residency are transferred to Florida and an ancillary personal representative is appointed. At that point, the procedure is similar to Formal Administration.

A lawyer representing the personal representative can guide the estate through probate by taking the following steps:

  • Filing the required documents with the court

  • Representing the personal representative in court

  • Arranging for payment of debts

  • Coordinating the distribution of estate according to the provisions of the will.

 

 

Summary Administration

Time Frame: Minimum of 8 months

If the total value of the probate estate is less than $75,000 or the decedent has been dead for more then two years and the will does not direct formal administration.

No personal representative is appointed. Instead, the court issues an Order of Summary Administration which sets forth distribution of the assets.  

You might use the court order to show a bank, that you are the rightful inheritor of the funds in an account it holds. If any real property is sold, the sale must be made by the beneficiaries named in the Order. They must all sign the contract and deed.

Formal Administration

Avg. Time Frame:  Minimum of 1 year

Most common procedure most people think about when they think about probate. If the total value of the decedent’s estate exceeds $75,000 or if the decedent’s will directs formal administration.  A decedent will either die testate (with a will) or intestate (without a will). If the estate is testate, then it is administered pursuant to terms of the will. An intestate estate is distributed according to provisions of the intestate law of Florida.

The probate proceeding takes place in the county where the deceased person was living at the time of death.   Beneficiaries and heirs are given notice, so they have a chance to object.

In formal administration an interested party files a petition with the court to open the estate and to admit the will to probate (if there is a will). The court appoints a personal representative to administer the estate. The personal representative has authority to sell any real property in Florida. It also has the duty to determine if the decedent had any creditors and to make sure all of the decedent’s debts are satisfied. The personal representative determines the identity and shares of the beneficiaries and distributes assets of the estate. 


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