Attorneys Tim Nies, and Christian Van Riper, are here to guide you through the probate process. We take our job very seriously.
After the death of a family member, a hundred questions may run through your mind, such as Should I keep paying the car insurance? How to I change the deed of the home into my name or how do I rent out my deceased family member’s home to pay the mortgage? How do I access my deceased family members bank accounts to pay bills that need to be paid?
The probate process in Florida divides or distributes your family member’s property pursuant to a will or by the laws of intestacy in Florida. Our probate lawyers will take the burden from you during this stressful and difficult time by being there for you and handling your probate needs.
How Long is the Probate Process in Florida?
Most probate cases typically resolve in approximately six to 9 months. The process includes appointing a personal representative, 3-month period for creditors and payment of the creditor’s claims.
Steps of the Probate Process in Florida.
1. Meeting with a Probate Attorney
Research and meet with an attorney practicing in Florida Probate Law. At this meeting, your attorney will help obtain required documents, such as your deceased family member’s will and certificate of death, which will be required. The attorney will help you, if you are named the executor in the will, and review your family members assets and debts that your family member may have outstanding.
Bring with you the following documents, if you have in your possession. It is not mandatory to gather all the documents below for the first meeting, however, it will be helpful to review. Your probate lawyer will help you and provide information on how to obtain documents.
- Financial records, including bank statements, 401K statements, investment account statements.
- A list of your deceased family member’s assets, including real estate, rental property, insurance policies, automobiles, bank accounts, jewelry, art, etc.
- The names, addresses and telephone numbers of all beneficiaries listed in the will.
- Income tax returns for your deceased family members.
- A list of all debts with any documents you can locate regarding debts such as mortgage statements, loan agreements, credit cards, etc.
2. Filing a Petition in a Florida Probate Court
The probate process commences when a petition for administration is filed in probate court in the county where your deceased loved one had a residence.
The probate process begins in earnest when you file for the Petition for Administration in the probate court in the county where the deceased had a residence. At this time, those persons named in the will and all potential heirs are notified that the estate is open. Oftentimes, all such persons are aware of the death of your loved one. Also, at the time of filing, those named in the deceased’s will and all potential legal heirs are formally notified that the deceased’s estate is open.
The Probate Court will then issue Letters of Administration. Such legal documents identify the person who has been appointed as personal representative (executor) and now permitted by the Court to act on behalf of the estate. The personal representative is typically a close family member of the deceased. The Letters of Administration give the personal representative the right to step into the shoes of the decedent to collect the decedent’s assets, sell real estate, hire a real estate agent, etc. Banks will require certified copies of these Letters of Administration to release assets. There are some differences between Florida counties relating to Letters of Administration, such as obtaining a bond.
The personal representative, at this stage, will also open an estate account, which serves as a depository for all estate assets subject to probate. It is oftentimes most convenient to open an estate account at the same bank as the decedent.
3. Notify the Creditors of the Deceased
The personal representative must attempt to notify the deceased’s creditors that the estate is open. This can be done directly, but it is required to publish a general Notice to Creditors in a newspaper local to the deceased’s residence at least once per week for two consecutive weeks. If there is no local newspaper, then it must be published in any newspaper that is in circulation in the subject county. It serves as a public announcement to give notice to potential creditors about the death and that there is a probate proceeding which has been opened.
Creditors who would like to make a claim against an estate, must do so within three months after the first publication. A creditor may request an extension from the court. Throughout this period, the personal representative must make a list of all known and potential creditors and file this with the Probate Court.
4. Inventory the Deceased’s Estate
The total net worth of the deceased’s estate will be assessed. To do this, the personal representative must conduct a thorough inventory and valuation of the deceased’s property. Such property includes bank accounts, brokerage accounts, investment accounts, real estate titles, motor vehicle titles, and other countable assets. The inventory sets forth those assets that are probate assets. If real estate is homestead property, it is technically not a probate asset, however, Florida Probate Rule 5.340 nevertheless requires that the homestead property be listed in a separate section of the inventory.
Once the inventory is complete, the personal representative will file it with the Probate Court no later than sixty days after the issuance of the Letters of Administration. This deadline may be extended by filing a motion with the court. Florida Probate Rule 5.340 requires that the inventory be sent to the surviving spouse, each heir at law (intestate estate), each residuary beneficiary of a testate estate and any other interested person who requests it in writing.
5. Close of the Creditor Period and Payment of Debts
Once three months have elapsed since the deceased’s creditors were notified, the personal representative of the estate will commence the process of closing the estate by paying all legitimate debts. Any claims received after this point are not considered valid and can be successfully disputed. In most situations, the debts left behind by a decedent are not the responsibility of the surviving relatives or family members. Any such valid debts are paid through this probate process.
Under Florida Probate Law (Florida Statute Section 733.707), expenses and claims of creditors get paid in a listed order, as follows:
- Costs, expenses of administration, and compensation of personal representatives and their attorney’s fees and attorney’s awards.
- Reasonable funeral expenses up to $6,000.
- Debts and taxes with preference under federal law, such as Medicaid, estate taxes, etc.
- Reasonable and necessary medical and hospital expenses of the last sixty days of the last illness of the decedent, including compensation of persons attending the decedent.
- Family allowance. Up to $18,000 for payments to a surviving spouse or dependents.
- Unpaid child support.
- Business debts incurred after the death of the decedent.
- All other claims.
Debts must be paid by using the cash available in the deceased’s probate estate account. If there is not enough money, the personal representative must sell off other estate property to generate more cash to satisfy creditors’ claims.
6. File and Pay Estate Taxes
The decedent’s death has two significant tax consequences: it ends the decedent’s final tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”
A final income tax return that includes the estate tax and all other applicable taxes must be filed and paid to the Internal Revenue Service. Taxes are normally paid from the probate estate and not from the personal representative’s own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid to the IRS. It is crucial to have someone qualified, such as a probate attorney, to walk you through what needs to be done at this stage in the probate process.
7. Final Probate Estate Accounting
The personal representative should have been maintaining thorough records of every fiduciary action taken in the probate process until now. At this point in time, these records should be arranged and consolidated. Records must include the estate’s assets, any payments made to creditors, probate administration fees, attorney’s fees, and costs, as well as the fee the personal representative is entitled to take.
8. Distribute Remaining Assets to Beneficiaries
After the estate has settled the cost of probate and the decedent’s outstanding debts, assets may be distributed to named beneficiaries, or in the absence of a will to the intestate (per statute) beneficiaries.
9. Close the Estate
The closing of the estate signifies the end of the probate process and involves the discharge of the personal representative. It is wise to always obtain an order of discharge in order of discharge. This is done by filing a petition for discharge, a final accounting and a statement regarding creditors. The petition will typically include a proposed plan of distribution of estate assets according to the provisions of the will, or intestate statutes.
In addition to probate administration, our Florida probate lawyers also represent client in complex probate litigation, including will contests.
For more information about Florida probate law, contact Christian Van Riper or Tim Nies day or night.