When it comes to probate and other end-of-life matters, many people are intimidated. They envision a legal process that takes years to reach a conclusion at great expense to the estate and its beneficiaries. While the probate process can be challenging, and there are cases that can get bogged down in litigation, the challenges can be managed, and litigation can often be avoided by timely working with an experienced probate attorney. At Gonzalez Law Offices, P.A., we help our clients navigate the probate process.
What is Probate?
Probate is the process by which an estate is administered. If the decedent died without a will, the assets of the estate would be distributed according to Florida’s intestate succession laws. Otherwise, the assets of the estate will be distributed according to the terms of the decedent’s will, assuming that the will is valid and properly executed.
The process is largely administerial, with the probate court acting in a supervisory role and ensuring that all legal requirements are met and the terms of the will are honored. The court only inserts itself into the process if there is a dispute.
The process is technical, and failure to take the necessary steps can lead to delays and other challenges. A knowledgeable probate attorney can handle the entire process for you from start to finish.
The Probate Process, Step-by-Step
The probate process is initiated by filing a document referred to as a Petition for Administration in the circuit court of the county where the decedent lived at the time of their death. The petition may include a copy of the will along with other supporting documents, such as the decedent’s death certificate. All named beneficiaries and other interested persons will be notified that the estate has been opened, and a personal representative will be appointed.
The personal representative is responsible for notifying all creditors of the estate that the estate has been admitted to probate. Florida law has very strict requirements for how and when creditors must be notified, and failure to meet these requirements can result in serious problems down the road. An experienced probate attorney will know the best way to identify all of the estate’s creditors and know what steps must be taken to ensure that they are properly notified.
Once all creditors and interested persons have been notified, the personal representative must gather and inventory all assets of the estate. Once all assets have been identified, the personal representative must then go through a valuation process. This is an important step and one where issues can easily arise. This is another aspect of the probate process where a probate attorney can provide invaluable guidance.
The personal representative will then file the inventory with the probate court. Once the court approves the inventory, the personal representative will pay all creditor claims and pay any estate taxes. They will then file an accounting with the probate court. Upon approval of the accounting, the personal representative can distribute assets to the beneficiaries and close the estate.
This may sound relatively straightforward, but it is the details that make it complicated. For example, the probate court may refuse to approve the accounting because it is incomplete or lacks documentation. A probate attorney will know what you need to do at every step of the process to ensure that it proceeds as quickly as possible.
Are there different types of probates?
Yes. Florida recognizes 3 types of probate processes:
- Formal Administration: Formal administration is the traditional form of probate and is the most common. It is required when a person has been dead for more than 2 years and the value of the estate exceeds $75,000.00. Formal administration requires that a personal representative be appointed to administer the estate.
- Summary Administration: Summary administration is a simplified probate process available when a person has been dead for more than 2 years and the value of the estate is less than $75,000.00. The cost and duration of a summary administration probate are usually less than in formal administration. A personal representative is not appointed in summary administration.
- Disposition Without Administration: This type of probate is available for very small estates and applies only in limited circumstances.
Is probate necessary?
Probate is not required for all estates. Some assets, such as bank accounts, insurance policies, annuities, and 401k plans, have beneficiaries or joint owners and transfer automatically without the necessity of probate. However, not all assets have beneficiaries and/or joint owners, and such assets must be transferred through probate.
Probate is necessary to transfer ownership of assets to beneficiaries. If the deceased person left a will, the court will transfer ownership of assets pursuant to the will. If the deceased person did not leave a will, the court would transfer ownership of assets pursuant to Florida law.
Do I need an attorney?
Yes. In almost all cases, Florida law requires that an attorney be retained for probate matters.
Work with a Florida Probate Attorney from Gonzalez Law Offices, P.A.
Whether you are a beneficiary, a creditor, or a personal representative, we can help with your probate case. To discuss your case with an experienced probate attorney from our firm, contact us today at 305-676-6677 or visit us online to schedule a free consultation.