Probate is a process supervised by the court, for identifying and gathering the assets of a deceased person, paying that person’s debts, and distributing the assets to the beneficiaries. The assets of the decedent are first used to pay the costs associated with the probate, then any outstanding debts are paid. Finally, the remainder of the estate is distributed to the beneficiaries named in the decedent’s will, or to the beneficiaries designated by the state of Florida.
Three Main Estate Administration Processes
In the state of Florida, there are three basic ways to administer an estate as far as probate goes. The first type of probate is—no probate. This is known as a disposition without administration. For those who leave very little in the way of property or assets behind, this is the process that will likely occur. The funeral expenses and medical expenses related to the last illness will be reimbursed from the assets of the estate. For decedents who did not leave any real estate, who have assets that are exempt from creditor’s claims, or who have assets that don’t exceed the number of final expenses, then no probate may be necessary.
The second type of Florida probate administration is known as a summary administration. This is a type of probate shortcut that is used to close out many Florida estates. If the death occurred more than two years ago, or if the value of the estate is not more than $75,000, then summary administration can likely be used. To start the process of summary administration, the person named in the will as executor, or anyone who will legally inherit property, will file a document called a Petition for Summary Administration. If there is a surviving spouse, he or she must sign and verify this petition. Beneficiaries of the assets who do not sign the petition must be formally served with notice the petition has been filed. The petition will state that the estate qualifies, under Florida laws, for summary administration. The petition will list the assets of the decedent as well as their value, and will clearly spell out who will inherit which assets. In the case of summary administration, no personal representative is appointed for the state, rather the court will issue an order which effectively releases the property to the rightful heirs. This court order, then, can be used in order to show a bank you are the rightful heir to the funds in an account.
The third type of probate is known as formal administration or “regular” probate. When an estate does not qualify for simpler means of administration, it could be necessary to go through formal probate. In this case, the executor who is nominated in the will—or any other interested party—may ask the circuit court to be appointed as the personal representative of the estate. Probate proceedings are generally conducted in the county where the decedent lived at the time of his or her death. Any person who would possibly inherit, absent the presence of a will, as well as beneficiaries and heirs named in the will, are given notice so they can object to the person named as a representative if they choose.
Letters of Administration are issued by the court, giving the personal representative authority to settle the estate in question. If a will exists, it will be filed with the court. The validity of the will may have to be proven by having those who witnessed the will swear under oath that it is valid and that the signature on the will is the same person who wrote and signed the will. In other cases, the will may be “self-proving,” meaning when the maker of the will signed the will, the witnesses signed a statement in front of a Florida notary public. Once the personal representative has court approval, he or she can inventory all assets, pay necessary debts and taxes, and eventually pass along the assets which remain to the beneficiaries. A final accounting must be submitted to the court. This list will show, specifically, what was contained in the estate, how the assets were managed, and the plan for distributing them to beneficiaries. If there are objections, these objections must be brought before the court. The estate will be closed, and the personal representative will be relieved of further responsibilities. Probate generally takes anywhere from six months to two years.
Florida Assets Which Are Not Required To Go Through Probate
There are certain assets that are not required to go through probate, primarily property held in joint tenancy. Houses, cars, or bank accounts shared by a married couple or a bank account shared by two people with rights of survivorship are not required to go through probate. Other assets, such as a bank account, life insurance proceeds, or retirement account which have a designated beneficiary, are also not required to go through probate. Finally, any assets which are held in a living trust are not required to go through probate. Probate administration applies only to probate assets which are those assets owned by the decedent in his or her sole name at the time of death.
Requirements for a Florida Will
About seventy percent of Americans do not have a will, whether because of procrastination, because they believe they don’t have enough assets to warrant a will, or because they just don’t want to consider their own mortality. A will is a written account of who the person who signs the will wants his or her assets to go to upon death. The will is signed by the decedent and witnesses and must meet the requirements of Florida laws. The person who writes the will can also designate an executor or personal representative who will administer the estate. In order for a will to be valid, it must meet the rules as defined under Florida law. A Florida resident who dies without a will is said to have died “intestate.” In such a case the estate will be divided by the probate court after all creditors are paid and probate fees are paid. If a person dies intestate and has a surviving spouse and no children or only children with the surviving spouse, the spouse will inherit the entire estate. The state of Florida excludes from valid consideration holographic wills and nuncupative (non-written) wills. A holographic will is one which is handwritten with no witnesses. Even if such a will was valid in the jurisdiction where it was originally written, it will not be recognized by the state of Florida.
A nuncupative will is one which is made verbally, in the presence of witnesses. An example of a nuncupative will would be a terminally ill man, who, knowing he was about to die, said in front of people in the hospital room full of people that he wants his niece, Sally, to have all his property. While this type of will is valid in some states, it is not recognized by the state of Florida. Anyone can make a will, however, Florida requires the will to be in writing. A will can be handwritten if it follows all other Florida formalities, in that it has the testator’s signature and was signed in front of two witnesses.
The witnesses to a will must sign in the presence of the testator, as well as the presence of each other. Witnesses may be beneficiaries, however, it is usually better for those with no interest in the will to witness in order to avoid any claims of impropriety. If an affidavit of authenticity is signed by the testator and the two witnesses before a notary, the will becomes a self-proving will and can go through a simplified probate procedure.
There are definite benefits to having a will or living trust. One of the primary benefits is that parents can choose a guardian for their minor children. Another benefit of having a will or living trust is that settlement costs can be lowered, estate taxes minimized, probate fees waived and the disposition of estate assets streamlined. Through provisions in a will or living trust, the decedent can delay the distribution of a minor child’s share of the estate until a specific age. A will or living trust allows the executor to operate a business owned by the testator until the estate is settled, with no liability attached to the executor. Wills and living trusts greatly minimize the level of dissension among survivors, and the burden on survivors is lessened. Without a will or living trust, the survivors and loved ones have a much more difficult job getting through probate, or even litigation, therefore having a will or trust is definitely an act of love and consideration for those left behind.
Other Considerations Regarding Wills
Most everyone has personal items which they hold dear. Whether these items consist of an art collection, jewelry, tools used for their work, photographs or family heirlooms, most people have definite ideas about where these items should go following their death. In many cases, items that have special sentimental value to the person writing the will, also have personal meaning to a person close to them. All wills can have a section for specific bequests. A daughter may be given a special necklace, a nephew the family silver, or a close friend your collection of cups. The memories behind such bequests are very special to those who receive them. Of course, these types of gifts can be made while the person is alive, and many people do distribute some of their most precious items prior to their death to ensure they go to the people of their choice.
Keeping Your Will Current
Get to know us: Keosha Crawford, AccountingIf you have made a will or a living trust, good for you. Now you must think about when that will or trust was made, and ask yourself how your life situations have changed since that time. People die, get married, get divorced, and babies are born. What were once close relationships may grow distant. The person who wrote the will could move, and if that move was out of state, the will may not comply with the new state laws. Persons selected as guardians when children were toddlers may not be appropriate when the children are older. Periodic reviews of a will can address all these issues.
The Job of the Personal Representative
The personal representative is either appointed by the court or designated by the decedent, and may also be known as the executor or administrator. The personal representative is charged with safeguarding the decedent’s probate assets. The personal representative must publish a Notice to Creditors in a local newspaper in order to give notice to potential claimants, then must serve a Notice of Administration to provide information about the probate estate. A diligent search must be conducted in order to locate creditors, and any objections to improper claims must be defended. Valid claims must be paid, tax returns must be filed, and any taxes which are due must be paid. If necessary the personal representative will employ necessary professionals to assist in the administration of the estate, such as attorneys, CPAs or appraisers. All expenses related to the estate will be paid, then the assets will be distributed to beneficiaries and the probate will be closed. Should a personal representative mismanage a decedent’s estate, he or she may be liable to the decedent’s representatives.
In order to be a personal representative, the person in question must be a Florida resident or, regardless of residency status, a spouse, sibling, parent, child, or other close relative. A person who is not closely related to the decedent or is not a Florida resident cannot serve as a personal representative. A personal representative cannot be under the age of 18 and must be mentally and physically qualified to perform the necessary duties. If you have questions about Florida estate administration, speak to an experienced Ayo and Iken legal team member to get the answers you require.