Probate

Losing the person you love can be emotional, and it can turn into a stressful experience if the deceased left behind debts to resolve or property to distribute to his/her rightful heirs. At Arnold Law, our experienced probate lawyers help clients seeking help with probate cases in Florida with professionalism.

Should you find yourself facing the overwhelming and challenging task of managing your loved one’s estate, do not handle it on your own. We can help you take care of the probate process so you and your family can concentrate on the critical matters that emerge after the demise of a parent, spouse, or any of your loved ones.

What’s Probate?

Generally, when an individual passes away, their property and debts must go through the probate process. Probate in Florida refers to the legal process of identifying and putting together a decedent’s assets, paying off their debts with those properties, then distributing the remaining to their heirs.  The process takes place in the county’s circuit court where the individual was residing when they died.

There’s a common misconception that if the decedent had a will, probate isn’t necessary. This isn’t true. Whether the deceased had a will or not, the process will have to be conducted (with various exceptions). Generally, it includes:

• Appointing an executor (personal representative) to work together with the probate court on the deceased’s estate’s behalf throughout the process. The executor is sometimes referred to as an administrator. Usually, an individual’s estate (i.e., having written an authentic will) will have named the person they wish to be the executor.
• Proving before the probate court that the deceased’s will is authentic. In case there are more than one will or codicils (amendments or changes done to a will), it will have to be determined what will apply and whether the codicils are valid.
• Identification and preparation of an inventory of the deceased’s assets
• Establishing how much the deceased’s property is worth
• Listing the deceased’s debts and notifying his/her lenders that the assets are undergoing probate. This usually includes publishing a notice in a local paper and directly reaching out to ascertainable creditors.
• Repaying all the debts and taxes due.
• Court and attorney fees which are generally paid from estate assets
• Distributing the remaining estate, if any. In case the deceased had a valid will, the estate is generally distributed to the people mentioned in the will. And if they didn’t have one, the property is distributed to the heirs identified and named under Florida law.

Executors are not under any obligation to use the same law firm that wrote the will for probate. Almost all Florida probate procedures involve probate attorneys who draft and file all the paperwork. Unlike a few other states, Florida statute generally doesn’t permit a do-it-yourself probate process except in a few cases that involve minimal refund checks, bank accounts, or similar properties.

Before the Probate Process

Before you start worrying about probate, you will first need to take care of the following:

Hire a Probate Lawyer

Unless you are the only person benefiting from the deceased’s will, or if there’s no will, the only rightful heir, a probate attorney must represent you. There are many critical reasons why you’ll need to do this as soon as possible. For instance, we may have cases where the deceased owned assets in other states or there’s a dispute between interested heirs about which state or county was the deceased a resident. If any of these circumstances apply to you, you have to begin filing with the court soon to avoid losing the chance to have probate heard in the best venue. Additionally, having a lawyer makes it easier to understand what you must do during the often intricate and hard times.

Inform the Decedent’s Income Sources

Usually, a funeral home takes care of this. However, to be safe, you should do so as well. Contact the Social Security Administration and other sources that might need to be informed that the individual has passed away. This prevents the stress of sending back payments.

View or Review the Probate Checklist

The following are some of the things you’ll need to have  when visiting your probate lawyer so they can advise and guide you properly:

• The decedent’s legal name, social security number, and place and date of death—the lawyer compares this info with the death certificate after the Health Department avails it. If there are any mistakes, they are corrected immediately. If you have the death certificate already, carry it.
• Copies of all trust agreements under which the decedent was the beneficiary or settlor
• The original last will, including all the official amendments— if applicable and possible, carry all the previous wills, too.
• Name, telephone numbers, and addresses of the surviving children and spouse —and if a will exists, all parties named: the executors, beneficiaries/heirs, or trustees. Don’t omit any person even if you feel they're irrelevant. The person you think is irrelevant has constitutional rights according to Florida statute and a claim to the assets irrespective of what’s specified in the will. Discovering these parties later during the process may cause a significant burden and possibly raise applicable legal fees and costs.
• Copies of boat and vehicle registrations plus mileage and condition info— if registrations aren’t available, gather the model, make, and HIN/VINs. Include if jointly owned. Note that vehicles shouldn’t be used when the estate is going through probate if possible. If any crashes occur within this period, the estate itself will be responsible, significantly impacting its size.
• Annuity contracts and life insurance copies
• Account statement copies (latest ones if possible) for all brokerage and bank accounts. Include if there’s joint ownership.
• Details of items of individual assets whose value is more than $500, including serial numbers and model
• Copies of tax returns, including gift tax returns— bring as many years back as possible as they will help determine if late returns may be necessary.
• Copies of real property (home/land) deeds. In case the decedent had real property in another state, list those too so your lawyer can advise on an ancillary proceeding that’ll need to be performed in that other state.
• Copies of divorce decrees or post- or pre-nuptial agreements, if any, or any other legal document that may provide for continuing financial obligations by the deceased.
• Copies of invoices and bills, including the one for the funeral home
• Even though you do not have to bring them during the consultation, you will need to order the death certificates of the beneficiaries you know died.

As probate continues, you’ll need to keep looking for other property that might have been missed from the beginning. However, the above documents provide a good start in establishing the estate’s standing at the beginning of the probate proceeding.

Funeral Home Arrangements and Expenses

Funeral homes usually request concrete assurances of payment or payment upfront. Often, an individual passes away having a prepaid funeral home account, which undoubtedly aids in alleviating your hassle to a given extent— you’ll just go to the funeral home holding the account.

Alternatively, some people may own a bank account with a ‘pay on death' provision, which names a party that will have immediate access to that account for funeral home expenses purposes. This will give you more liberty on which funeral home you can use.

If none of these is the case, you may be capable of accessing a joint account if you’re the deceased’s spouse. In case the estate is not liquid, and you’re incapable of raising the money to pay the home upfront, they’ll often take assurances of future life insurance proceeds to continue with arrangements.

Forms of Florida Probate Proceedings

We have four basic kinds of probate administrations or proceedings and means to distribute the deceased’s property. The type used depends on the amount and type of assets in the dead person’s estate. You should discuss the ideal type of proceeding for the deceased’s estate with your lawyer.

Summary Administration

Summary administration is a more streamlined and shorter process for simpler and smaller estates valued at no more than $75,000. The value of homestead real property isn’t counted in totaling the estate’s value. This form of probate proceeding is cheaper and quicker than the others.

Additionally, if an individual has been deceased for over two years, their estate can go through summary administration irrespective of its value. Note that whereas summary administration might seem like the best way to take a simple and small estate through the probate process, it might not be recommended since it does not offer the same creditor protection as formal administration. If the deceased recently passed away, creditors can return within 24 months, even when the estate is already closed and all the property has been distributed, and bring a claim against the estate.

Also, summary administration doesn’t work in various cases like those with missing or minor heirs or where the deceased person’s debts or assets are unknown.

Formal Administration

Formal administration is the common kind of probate proceeding. With this proceeding, there’s no lower or upper limit on the estate’s value. It’s a more thorough and longer process compared to summary probate administration. It usually takes approximately one year (averagely) to complete. Formal administration proceeding provides higher creditor protection compared to summary administration. It does this by triggering time limits within which claims have to be filed or waived forever. Under many circumstances, a formal administration could be necessary even when the estate, in essence, doesn’t have assets to distribute, usually known as a dry proceeding.

Disposition Without Administration

Disposition without administration is also known as small estate disposition. This form of proceeding is only available in a few cases and is thus rarely used. It’s not technically a kind of probate administration since, as the name suggests, no actual administration takes place. Instead, it's used to refund the person who paid the deceased’s final expenses.

Assets qualify to go through disposition without administration only if the deceased leaves them consisting of:

• Personal properties exempt under Fla Stat. 732.402 (furnishings, appliances, and household furniture up to a net worth of $20,000 as of the deceased’s demise and two vehicles as defined under Fla Stat. 316.003.
• Non-exempt personal assets whose value doesn’t go beyond the amount for preferred funeral costs and necessary and reasonable hospital and medical costs of the last sixty days of the last illness
• Personal assets exempt from the creditors’ claims under the Florida constitution

Ancillary Administration

Ancillary administration is a kind of proceeding for an individual who owns real property in Florida but isn’t a Florida resident. It will generally be conducted in conjunction with a probate proceeding in another state.

The Probate Process

The probate process kicks off with a petition requesting to open the deceased’s estate and appoint one or several personal representatives. Afterward, a Notice to Creditors will be published in a newspaper, after which creditors will generally have up to three months to bring their claims.

After the three months have passed, the executor can repay the deceased’s debts (in a particular order) then distribute the remaining assets. Once they distribute everything, a petition to discharge will be filed, and the state’s estate will be closed.

Whereas this might sound easy, probate is a relatively intricate system of optional and required tasks by the attorney, personal representative, and at times tax consultant (usually a CPA). The simpler the deceased person’s distribution plan and assets, the more straightforward the probate process will be.

One bank account and one house left to one beneficiary will undoubtedly be simple to administer compared to homes in four different states divided among ten heirs, a few of them being minors.

Filing the Will

The party with custody of the original will has to take it to the court clerk in the circuit court for the county where the deceased resided at the time of their death within ten days of receiving the death notice. In some instances, they must take a copy to the probate court. However, this is usually a last resort and needs a special petition and court hearing.

The absence of the original will may indicate that the decedent physically destroyed it on purpose, which would imply that it was revoked and is not valid anymore. The individual submitting the will has to give either the deceased’s social security number or date of death.

You don’t have to wait until you retain a probate lawyer to file the will. However, you should do that if it’s within the ten-day timeframe. It could be the case, even though it rarely happens, that probate isn’t necessary. 

Assets that Must go Through the Probate Process

Probate administration solely applies to probate properties. Probate assets are those that the deceased owned in their sole name at death, or were owned by the deceased and one or several co-owners and lacked a provision for automatic succession of ownership at death. They include but aren’t limited to:

• The decedent’s solely-owned real estate
• The deceased person’s investment or bank accounts
• An annuity contract, life insurance policy, or personal retirement account payable to the deceased’s estate
• Real estate titled only to the decedent's name or deceased’s name and someone else as tenants in common, is a probate property (except if it’s homestead property)

Non-Probate Assets

Some assets don’t belong to the probate estate. Therefore, in particular cases, probate might not be necessary. These properties automatically pass by operation of law upon an individual's demise.  However, note that some of these assets aren’t immune from creditors’ claims. If the probate estate isn’t enough to pay off creditors, they might file claims against some of these assets even though they do not pass through probate.  A few of these properties will also be utilized to establish the worth of elective state that a spouse might opt to take. Non-probate assets are:

• Jointly owned assets with a survivorship right or assets owned as tenancy by the entirety, for instance, a bank account shared by more than one individual or house owned by a couple. These kinds of assets automatically pass to surviving owners.
• Property held in a living trust
• Property for which the decedent named a beneficiary, such as life insurance payouts, retirement benefits, death benefits, POD bank account proceeds.
• Life estate deeds to real estate designating a remainder beneficiary, including a ‘Lady Bird Deed.’ A Lady Bird Deed is a form of deed that permits assets to pass in a manner that avoids Florida Medicaid claims against the estate.

Avoiding Probate

Avoiding probate is not hard. You can use the following effective and straightforward ways to make sure that some or all of your assets pass directly to your heirs/beneficiaries  without going to the probate court:

Payable-on-Death (POB) Designations For Bank Accounts

You could add a POD designation to bank accounts like certificates of deposits or savings accounts. You’ll still be in control of all the cash in the accounts— your beneficiary doesn’t have rights to the money, and you could spend all of it if you wish. But after you die, your beneficiary will have the right to claim the money directly from the bank without the probate process.

Revocable Living Trust

A living trust enables you to make an end-run around probate. The good thing about holding valuable assets in a trust is once you die, the trust asset isn’t part of the probate estate (However, it’s counted as part of your estate for federal estate tax purposes). This is because trustees (not you as a person) own the trust assets. After you die, the trustee quickly transfers the trust assets to the friends and family you left them to, without the probate process. You state in the trust document, which resembles a will, who you want as the heir to the property.

Transfer-on-Death (TOD) Registration for Securities

Florida allows you to register your bonds and stocks in a TOD form. Most people hold brokerage accounts in this manner. Should you register an account in TOD, your designated beneficiary will inherit the account automatically once you pass away. Probate proceedings aren’t necessary— the beneficiary deals directly with the brokerage company to transfer the account.

Joint Ownership

If you own assets jointly with another person, and the ownership includes the right of survivorship, the surviving owner will automatically own the property if you die and vice versa. No probate process is necessary to transfer the assets, even though it will involve a few paperwork to indicate that title to those assets is held only by the surviving owner. Florida has two types of joint ownership:

• Joint tenancy— assets owned in joint tenancy will automatically pass to the surviving owner when one owner passes away. No probate process is necessary. This type of joint ownership often works best when couples (unmarried or married) acquire bank accounts, vehicles, real estate, or other valuable assets together. Each owner, known as a joint tenant, has to own an equal share.
• Tenancy by the entirety—tenancy by the entirety is similar to joint tenancy but is only allowed for married couples.

Giving Away Assets as Gifts

Giving assets away as a gift while you are still alive helps prevent the probate process for one simple reason— if you do not own them, they don’t have to pass through probate when you are deceased. This lowers probate expenses since, generally, the higher the monetary value of the property that goes through probate, the higher the fees. And mostly, gifts are not subject to the federal gift tax.

Contact an Experienced Probate Attorney Near Me

For all but the simplest of estates, Florida statutes dictate that an estate executor retain a probate lawyer to guide them through the process. Whereas hiring a lawyer may appear to be an unnecessary burden, they should help make the probate process as efficient as possible. Ending probate administration on time is in the best interests of the estate and all other interested parties. Whether you’re an executor, beneficiary, heir, or creditor affected by a probate proceeding, attorneys at Arnold Law can help you regardless of which county you reside in Florida. Call us at 904-264-3627 to learn more about this process during our consultation and case review session with you.