Elder Law Rights

Posted by Joseph W. Lehn

Florida Probate

                                                          Understanding the Probate Process

Probate is the legal method, by which, assets belonging to a deceased person’s estate are redistributed or retitled. In Florida, there are two types of probate; summary administration and formal administration, both of which are administered by the Florida court system. The time frame to complete the average probate case in Florida is 6-9 months, depending on the difficulty of the estate.

Will

  • The existence of a valid will can determine the type of probate required and shorten the time necessary to complete the probate process. If a valid Florida will exists, the language and details contained within the will control default provisions under Florida probate law. In addition to certain will formalities, Florida law dictates that a will must be signed by the person making the will and two witnesses. If no valid Will exists, the probate process must still take place and the assets are distributed according to the state of Florida’s intestacy laws.

Personal Representative

  • In Florida probate cases, a “personal representative” is the person assigned by the court to administer the deceased person’s estate. In other states, this person may be called an administrator or executor. The personal representative is accountable for contacting creditors, paying bills, distributing property, filing tax returns, communicating with the probate court and hiring an attorney. To qualify as a personal representative, an individual must be a close relative of the deceased or a resident of Florida. In some cases, a bank or trust company can serve as personal representative in probate court. In some instances, the personal representative may be required to post a bond to insure and protect the proper administation of the estate.

Filing of Probate

  • Florida Probate begins with the filing of the will and any other applicable paperwork with the Clerk of the Circuit Court. A Petition to open up a Probate case is filed with the Probate Court. This filing requires the payment of a fee, which is necessary to complete the process. The Clerk will assign a probate case number and continue to oversee the process as it proceeds through the court. Florida law dictates that any probate documentation containing financial information about the deceased person’s estate be kept private, and not available for public viewing.

Probate Time Frame

  • Formal probate cases in Florida average 6-9 months to close, with more complicated estates extending past this time frame. Issues that can lengthen this time frame may include the sale of real estate or other tangible assets, creditor lawsuits, disputes over the will, liquidation of assets such as stocks or bonds or court scheduling delays. Taxable estates cannot close probate until the Internal Revenue Service approves the Estate Tax Return 706, which must be filed within nine months after the date of death.

Summary Administration

  • As an alternative to formal probate, Florida law allow for an abbreviated probate filing, known as a “summary administration.” To be eligible, the estate must contain less than $75,000 worth of assets or the deceased must have been dead for at least 2 years. Other rules and details that determine the filing of a summary administration can be found in the state’s probate rules (see Resources).

Close of Probate

  • To close probate in Florida, the personal representative must provide the court with proof that all estate debts have been paid, real property has been retitled or sold, and proper tax returns have been filed. Once the judge is convinced that the estate has been properly administered, he or she will order the closing of the case.