Probate

Probate

Probate in Florida
Florida has a very detailed probate system set forth in the Florida Statutes and also in the Probate Rules adopted by the Florida Supreme Court. The Sunshine State’s system is logical and covers nearly all situations that arise, but it has several disadvantages and pitfalls.
One negative aspect of Florida’s probate law is that most administrations are required to employ an attorney, for two reasons. First, Florida has a rule that unless the personal representative (executor) is the only beneficiary, he or she must hire a licensed attorney to assist in the probate administration. The rationale appears to be that, because the interest of creditors and beneficiaries can be harmed by a personal representative, intentionally or unintentionally, the protection of a lawyer for the estate is necessary. Second, as a practical matter, Florida’s system is too complex for many personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. In other words, don’t count on the court clerk’s office to guide you through, as they might in a small claims action or domestic restraining order. Probate takes too long and has too many rules for the clerk’s office to help people through, in most cases.
The normal probate process Florida uses a “short form” of probate for certain smaller estates, which is quicker and cheaper than the “formal administration” used for most probate administrations. Summary administration can include any value of “homestead” so long as the “non-exempt” property does not exceed $75,000. Summary administration can also be used in any size estate if the decedent has been dead more than two years.Formal administration requires a minimum of four months to complete, and most take longer. If the estate is taxable and a federal Form 706 (estate tax return) must be filed, that alone will require most estates to be open more than a year. Nontaxable estates can normally be closed within five to nine months from beginning, if there are no complications and if all the assets and debts can be immediately determined and taken care of.
What does “probate” consist of? The following is an over-simplification: The process starts with a petition to open the estate and name the personal representative. When that is done, a Notice of Administration is published in a local newspaper and is also sent to beneficiaries and other “interested persons.” Creditors generally have 90 days in which to file their claims, and once the period of time for creditors’ claims has passed, the personal representative can pay the debts and distribute the remaining estate. Once done, a petition for discharge is filed, and the estate closed. While this summary may sound simple, probate is a fairly complex system of required and optional tasks by the personal representative, the attorney and the tax consultant (often a CPA). Of course, the simpler the assets and the decedent’s plan of distribution, the simpler probate will be. A single house and bank account left to a single beneficiary will no doubt be simpler to probate than real estate in four states split among 13 beneficiaries, some of whom are minors.
Colleen White is an excellent probate attorney, in all counties, she understands that some personal representatives will prefer to hire a local attorney. We’re not “local” to the courthouse in all cases, but usually we don’t need to be as long as the U.S. Postal Service keeps working. We offer Florida personal representatives, wherever they are located, a modern, efficient and economical alternative. If you would like to discuss the administration of your loved one’s estate, please call or email to schedule a telephone conference at no charge.