Frequently Asked Questions about Probate and Estate Planning

1. WHAT IS PROBATE?

Florida probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. Florida law establishes two types of probate administration:

  1. Formal probate Administration, with which most of this information deals and
  2. Summary Probate Administration Florida law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."

2. WHAT ARE PROBATE ASSETS?

Generally, Florida probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

3. WHY IS PROBATE NECESSARY?

Probate is necessary in Florida to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida Probate also serves to transfer assets from the decedent's individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.

4. WHAT IS A WILL?

A will is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida probate law. A will usually designates a personal representative to administer the probate estate and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the automatic provisions set forth under Florida probate law. In the absence of a valid will, or if the will fails in either respect, Florida law designates the beneficiaries and designates the way to select the personal representative.

5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?

Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

6. WHO IS INVOLVED IN THE PROBATE PROCESS?

While there may be others, the following is a list of persons or entities often involved in the probate process:

7. WHERE ARE PROBATE PAPERS FILED?

Probate papers are filed with the Clerk of the Circuit Court, usually for the county where the decedent lived. A filing fee must be paid to the clerk to commence the probate administration. The clerk assigns a file number and maintains a docket sheet which lists all papers filed with the clerk for that probate administration.

8. WHO SUPERVISES THE PROBATE ADMINISTRATION?

A Circuit Court Judge presides over probate proceedings. The judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters." This document shows to the world the authority of the personal representative to act. The Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called "orders."

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The personal representative is the person, bank or trust company appointed by the Florida probate court to be in charge of the administration of the probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix." The personal representative is directed by the Florida probate court to administer the probate estate pursuant to Florida probate law. The personal representative is obligated to:

10. WHO CAN BE A PERSONAL REPRESENTATIVE?

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

In almost all instances the personal representative must be represented by a Florida probate lawyer or attorney. Many legal issues arise, even in the simplest probate estate administration. The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the Florida probate law, and represents the personal representative in probate estate proceedings. The probate attorney for the personal representative is not the attorney for the beneficiaries. A provision in a will mandating that a particular probate attorney or firm be employed as attorney for the personal representative is not binding on the personal representative.

13. HOW ARE ESTATE CREDITORS HANDLED?

Prior to commencement of Florida probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the probate estate with the Clerk of the Circuit Court where the probate estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim. The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of.

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?

For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate." The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the probate estate:

The personal representative may be required to file other returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed). The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court.

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. A federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue." Regarding Florida's intangible tax, the Florida Department of Revenue may review the inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax. For estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a marital agreement to the contrary, a surviving spouse may have homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate attorney.

17. WHAT RIGHT DO OTHERS HAVE IN THE PROBATE ESTATE?

Under Florida law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.

18. HOW LONG DOES PROBATE TAKE?

For probate estates not required to file a federal estate tax return, the final accounting and papers to close the probate administration are due within 12 months of issuance of letters of administration. This period can be extended, after notice to interested persons. The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the court because often the IRS' review and acceptance of the estate tax return are not completed within that period. Probate estates that are not required to file a federal estate tax return and that do not involve litigation may often close in five or six months.

19. HOW ARE FEES DETERMINED IN PROBATE?

The personal representative, the Florida probate attorney and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by Florida probate law to reasonable compensation. The fee for the personal representative is usually determined in one of five ways:

(1) as set forth in the will;
(2) as set forth in a contract between the personal representative and the decedent;
(3) as agreed among the personal representative and the persons who bear the impact of the fee;
(4) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or
(5) as determined by the Florida probate judge, applying Florida probate law.

Likewise, the fee for the for the personal representative's probate attorney is usually determined

(1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
(2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or
(3) as determined by the Florida probate judge, applying Florida probate law.

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

Florida probate law provides for several alternate, abbreviated procedures other than Formal Probate Administration. Summary Probate Administration is generally available if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years. Under Summary Probate Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Probate Administration by publication of notice in a local newspaper Another alternative to Formal Probate Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness. If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the will to record in Florida. This procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the real estate as if the will had been admitted to probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida.

21. WHAT IF THERE IS A REVOCABLE TRUST?

If the decedent created a revocable living trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court where the decedent lived, giving information concerning the settlor and trustee.

This material represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular case. Legal Notice and Disclaimer. The materials within this website are for informational purposes only. This information does not constitute legal advice and should not be relied upon by any individual. Communication of this information is not intended to create, and receipt does not constitute, the establishment of an attorney-client relationship. Internet users and readers should not act upon this information without first seeking professional legal counsel for your particular circumstances. The information on this website is provided only as general information which may or may not reflect the most current legal information.

 

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