When a family has just suffered the loss of a loved one it is faced with hard decisions when it is most difficult to make them. Hiring an experienced Florida Probate Attorney is required in most cases, but also a very important step to get the help you need. Choosing Boyer Law Firm to assist you in settling the estate’s affairs will add clarity, efficiency and peace of mind to the guiding the settlement of your loved one’s estate through Florida formal administration, summary administration, or ancillary administration proceedings. Our skilled attorneys can assist surviving spouses, beneficiaries, and personal representatives navigate the intricacies of formal administration, summary administration, and ancillary administration probate procedures. Boyer Law Firm works with the family to demystify Florida’s sometimes difficult probate procedures, laws and rules. Only through aggressive representation and compassionate care will your family ease the tension in this difficult situation.
Florida Probate & Inheritance
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Common Probate & Inheritance Terminology:
- Beneficiary: An heir in an intestate estate and a devisee in a testate estate. Florida Statute § 731.201(2)
- Decedent: The individual who has died.
- Devise: the property passed pursuant to the terms of a will.
- Heir: an individual entitled to receive property of the decedent under the intestacy statute.
- Intestate: to die with property that will not pass pursuant to a will.
- Testate: to die with property that will pass accordingly to the terms of a will.
What is Probate?
When it comes to Florida Probate and Inheritance process, a will is one of the most misunderstood documents. Most assume that a will is a means to avoid probate; however, typically, probate is still required to transfer assets to their heirs.
Probate is the court-supervised process of administering a person’s estate after their death. This includes the distribution of the decedent’s assets to their heirs and beneficiaries and settling any debts. If a will exists, probate will include validating or “proving and accepting” the will and executing the will in accordance with the terms therein.
In accordance with Florida Statute 733.101, probate is required to be initiated in the state and county in which the decedent was domiciled, if a Florida resident, or in the county where the decedent owned property, if they were not a Florida resident.
Probate involves identifying all the assets of decedent, paying all the decedent’s debts, and directing distribution of the decedent’s assets to the heirs or named beneficiaries. By statute, there is a proscribed order of payments utilized when the estate does not have enough assets to cover all the expenses and/or the order for distribution. Initially, the estate assets are used to pay the cost of the probate proceedings, then payment of the decedent’s funeral expenses, then the decedent’s outstanding debts, and finally, the remaining assets are distributed to the decedent’s beneficiaries. The complete order of payments can be found at Florida Statute 733.707.
What Is a Personal Representative?
In the Florida probate process, a personal representative is either named in the will or court-appointed to represent the estate of the deceased. Commonly, you will hear the Personal Representative referred to as the executor (executrix) or administrator (administratrix) of the estate.
How Is A Personal Representative Chosen?
As previously mentioned, in Florida personal representative is usually appointed in the deceased’s will. Pursuant to Florida Statute 733.301, the person named in the will typically is appointed by the court, so long as the person or entity named is legally qualified. If the decedent did not have a will, then the court will appoint a person closest to the deceased, the heir nearest in degree, to serve as the Personal Representative. Florida Law proscribes the preference in appointment of a personal representative in Florida Statute 733.301(b). The court will select the most qualified individual, starting with a surviving spouse, if one exists. If the deceased did not have a spouse, the next category for selection by the court will usually be the person selected by majority in the interest of the heirs or an heir who is the nearest degree of relation to the deceased. While the appointment of a personal representative is dependent upon the discretion of the court, the court cannot force an individual to act as the personal representative. Any individual named or appointed to serve as the personal representative has the option to decline such representation.
If it is unknown or undetermined who will serve as the personal representative of the estate, the court will hold a hearing and appoint a capable person to act as the personal representative.
If you are appointed the personal representative of a Florida estate, it is in your best interest to hire an attorney to represent you in the Florida probate process. If you would like a case evaluation, call us at (305) 921-9665.
Who Qualifies to Be A Personal Representative?
As stated in Florida Statute 733.302 and 733.303, any person who is 18 years of age and a resident of Florida upon the death to the decedent qualifies as to act as a personal representative, unless that individual is:
- under 18 years old at the time of the decedent’s death;
- has been convicted of a felony; or
- is mentally or physically unable to perform the duties.
Is the Personal Representative Required to Hire an Attorney?
In Florida, every appointed personal representative, unless they are the sole interested party in the estate, is required to be represented by a Florida licensed lawyer. A qualified Florida inheritance lawyer will assist in administering the decedent’s estate and draft intricate documents, including petitions to open and close probate proceedings. Numerous legal issues can arise amidst Florida probate and inheritance proceedings, even in a relatively simple cases. Often these issues become incredibly complex.
Personal Representative (Fiduciary) Obligations and Protection from Liability
Furthermore, the personal representative has a fiduciary duty to the estate of the deceased. If the personal representative does not fulfill his obligations as required by the Florida Probate Rules, then he or she could be held personally liable for any resulting losses. Underpaying taxes, making an accounting error, paying heirs and creditors in the incorrect order or wrong amount, or failing to obtain court authority before taking certain actions could all lead to personal liability.
It is easy to make a mistake and mishandle the estate when you attempt to go through the process on your own. Seeking the guidance of a trusted Florida probate attorney will ensure proper procedure is followed and that the personal representative acts in accordance with Florida law to prevent fiduciary liability.
Types of Probate Proceedings in Florida
In the state of Florida, there are four types of probate proceedings to handle inheritance and distribution of an estate: formal administration, summary administration, disposition without administration, and ancillary administration.
Formal administration, as the name implies, is the most common type of probate proceeding in Florida. Also referred to as “large estate” administration, formal probate is governed by Chapter 733 of the Florida Statute. Typically, this type of probate is required when the decedent has been dead for less than 2 years and the value of the estate assets exceeds $75,000.00. As described briefly above, the estate assets and a decedent’s gross assets are not necessarily the same.
To begin the formal administration of Florida probate and inheritance process, the named personal representative or any person with interest in the estate’s assets, files a petition for administration and requests the designation of a personal representative to act on behalf of the decedent’s estate with the court. The estate is only considered officially opened once the court appoints a personal representative to oversee the probate process.
Once a personal representative is determined, according to Florida Probate Rule 5.030, he/she must hire a Florida probate attorney. The lawyer will request the will be admitted to the court. Of course, this will only occur if the decedent left a will. The court will then determine whether the will is legally valid. Under Florida law, courts will recognize wills that are validly executed under the laws of the state where the will was executed so long as it is not a nuncupative (oral) or unexecuted holographic (handwritten) will. However, any interested party (i.e., someone who may have a claim to the decedent’s assets) may challenge the validity of the will.
Contests to a will’s validity is a very common challenge faced when probating an estate, especially with the rise of travel and out-of-state documents.
Once a personal representative is appointed and the court admits the will, the court will issue Letters of Administration. This document gives the personal representative legal authority to administer the estate. If the decedent had a will, the designated personal representative will be permitted to carry out the wishes as detailed in the document. In order to administer the estate during this process, the personal representative will need to collect and inventory the decedent’s assets, including real estate and bank accounts, ascertain their value, and discover and pay any debts owed by the estate. After all the value of the assets has been determined and all the debts, including taxes, have been paid, the remaining assets can be distributed according to the decedent’s wishes or pursuant to Florida intestate law.
For more information regarding the handling of debts of an estate, under Formal Administration, visit our page dedicated to the topic.
This can be a very lengthy and complicated process, depending on the size of the estate, lasting anywhere from a few months to several years.
Our skillful Florida Probate Attorneys stand ready to assist you in every aspect of the probate administration process. With offices conveniently located in Miami, Orlando, and Jacksonville our firm handles Florida probate and inheritance matters shore to shore. Seek experience when it matters most, especially when handling your loved one’s affairs.
In contrast, Florida law provides for more simplified administration of estates, called summary administration. As its name suggests, summary administration is a less time-consuming and less expensive than a formal administration. In fact, summary administration is titled “small estates” under Chapter 735 as the estate must be less than $75,000.00. Summary administration may also be utilized if the death of the decedent occurred two years prior to probate. There are exceptions to this general rule, as is usually the case when dealing with the law. To ensure proper handling of your loved ones’ estate, you should consult with an experienced Florida Probate Attorney.
Like formal administration, summary administration is initiated by filing a Petition for Administration, according to Florida Statute 735.203. What is unique about summary administration is that no personal representative will be appointed. As such, once the court accepts the petition for summary administration, the petitioner (the person who filed the petition) must determine or do a diligent search for any known creditors and provide for payment of such if there are assets available to do so.
An order of summary administration will be entered by the court allowing distribution according to the will if proved or in accordance with Florida intestacy law. If the decedent died testate, then assets will be allocated according to the instructions within the will.
While seemingly much more straightforward than Formal Administration, this whole process can take quite a few months to complete.
Disposition Without Administration
As the name implies, no administration is required for this form of Florida probate and inheritance. However, this method is utilized in very rare circumstances. This disposition is used to reimburse an individual who has paid the decedent’s final expenses and transfer personal property otherwise exempt from the claim of creditors.
If you find yourself in any of the above scenarios, you should seek the counsel of a skilled probate lawyer to help guide you through the probate process.
Ancillary Administration: Probate for Non-Florida Residents Who Own Property in Florida
If an out-of-state or non-U.S. citizen dies while owning property in the State of Florida, Ancillary Administration is required. Florida requires that property owned and situated in Florida must be disposed of per Florida law in the court where the property is located. For example, if Annette owned a house in Vero Beach, Florida, but primarily lived in Minneapolis, Minnesota. Her estate would be probated in Minnesota, while an ancillary proceeding would be needed in St Johns County, Florida, to distribute the Florida property. If the decedent had a will when they passed away, it is essential to note that pursuant to Florida law, Florida courts will apply Florida law to determine the validity of the will. Florida statute § 732.502(2); see also § 734.104.
Unlike Formal or Summary administration, to start an ancillary administration in Florida, probate must be initiated in the state or country of the decedent’s residence. This out of state probate must occur regardless of whether the decedent owned any assets that would be subject to probate in that state.
If you find yourself in this situation, and have questions or need assistance, call to have one of our experienced attorneys evaluate your case.
What happens if the out-of-state probate is closed?
Many personal representatives often do not realize that ancillary probate must be initiated while the primary probate is pending in another state or country. Unfortunately, Ancillary Administration is not allowed unless the probate in the other state is pending. Luckily, there is an alternate procedure to handle this whereby the will can be admitted for record under Florida law. This requires that the will is valid pursuant to Florida law. The will must be valid in Florida regardless of whether it is considered valid in the state or country where it was executed. To initiate this process, a representative would file a petition to admit the will to record along with an authentic copy of the will. If the will is not in the English language, a certified translation will also be required.
If the court admits the will to record, then the will is effective in Florida to pass the property title as outlined in the document.
Florida Probate & Inheritance for Non-US Citizens
Resident Aliens (Green Card Holders)
A green card holder is considered a resident of the state where they are residing. As such, if a green card holder passes away while a resident of Florida, his or her estate will need to be processed in accordance with that Florida probate laws. It is often the case that probate actions are also required in other states or countries where the green card holder owned property or in accordance with the laws of the country where their citizenship was still held.
Much like a green card holder, a non-resident alien is considered a resident of the state wherein they reside. As such, if they own property, they will be required to probate in the county and state where either they lived or the property was located. Probate will likely also be required in other states or countries where the deceased non-resident alien owned property.
If you have questions about the probate process and how it applies to green card holders and non-resident aliens, contact Boyer Law Firm for a case evaluation today.
How Long Does The Probate Process Take?
Unfortunately, there is no way to answer that question. It can take anywhere from a few months to a few years, depending upon the complexity of the estate, the size of the estate, and even the backlog of the court.
Estate Disputes And Litigation In Florida
Probate litigation often occurs as the result of one parties’ portrayals of unfairness in the settling of an estate or overall hurt feelings. When a disagreement or misunderstanding between family members escalates into a lawsuit or threatens to do so, an experienced probate litigation attorney can be instrumental in resolving the matter, whether that is through court proceedings or through negotiations, including mediations.
For a more in depth look at Estate and Trust Litigation support, visit our page dedicated to the topic.
Protecting Your Heirs And Estate With A Properly Drafted Estate Plan
As you can see, estate disputes can often arise even with the best of intentions. It is important to ensure you have a properly executed estate plan to protect your wishes for the distribution of your assets upon death as many disputes can be mitigated substantially.
We’re Here For You Every Step Of The Way
When a family has suffered the loss of a loved one, they face complex decisions burdened with Florida statutory timeframes. Hiring an experienced Florida Probate Attorney is a particularly important step to get the help you need. Choosing Boyer Law Firm to assist you in settling the estate should add clarity, efficiency, and peace of mind by guiding the settlement of your loved one’s estate throughout the probate process. Boyer Law Firm works with the family to demystify Florida’s sometimes difficult probate procedures, laws, and rules. Detail-oriented representation met with compassionate care will help ease the tension your family is experiencing.
Offices in Miami, Orlando, and Jacksonville.