Unless you are legally trained or have acted as an estate’s executor or administrator in the past, the probate process is probably a mystery to you. Do not feel ashamed or alone: many Americans do not even create wills or other estate planning documents for themselves, much less understand what happens with these documents once a person passes away. Ultimately, understanding what happens after you pass away can help you prepare your family so they know what to expect.
Introduction to the Probate Process
Probate is the term used to describe the process of identifying the assets of the deceased, paying his or her debts, and distributing any remaining assets to the beneficiaries.
This process is supervised by the court and occurs regardless of whether the individual died with a will or other estate-planning document in place or not. The probate process is designed to ensure that a decedent’s affairs are timely wound up and that any creditors and/or beneficiaries of the decedent are treated fairly. Typically the larger the decedent’s estate (i.e., the more assets he or she has at the time of death), the more complex the probate proceedings will be. Although some individuals are able to follow the probate process without legal assistance, you should consult with an experienced probate attorney if you find that you have questions or concerns along the way.
In general, the probate process requires the decedent’s executor or administrator to conduct some investigation into the decedent’s assets and financial affairs, provide notification of the decedent’s death to creditors and beneficiaries, and (if there is a will or other such instrument) carry out the wishes of the decedent with regards to the disposition of his or her property.
The Probate Process Applies Only to Probate Assets
The probate process does not apply to all property owned by the decedent at the time of death (although to be fair, it does apply to most property). Only those assets and items that are considered “probate assets” are subject to the probate process. Probate assets generally include any asset whatsoever that was owned solely by the decedent at the time of his or her death or that he or she co-owned with others but did not have an automatic succession plan in place for that asset. Thus, probate assets typically include:
- Cars, clothing, jewelry, books, and other such items of personal property
- Bank accounts or investment accounts that are in the name of the decedent only with no payable-on-death or transfer-on-death designee;
- Life insurance policies, retirement policies, and other such accounts that are payable to the estate of the decedent; and
- Real estate that is titled in the name of the decedent solely or titled with another person as tenants in common (unless the real estate is homestead property).
Assets such as life insurance policies, bank accounts, retirement accounts and real estate in which there is an identified beneficiary other than the decedent or his or her estate are generally not considered probate assets and are distributed to the named individual or entity automatically upon the decedent’s death.
How the Probate Process Begins
The probate administration process begins when an individual dies and a petition is brought in a Florida court (usually in the jurisdiction in which the decedent was living just prior to death). This brings the individual’s estate under the jurisdiction of the court. The court will then appoint an executor or personal representative to handle the administration of the estate. If the person left a will (called “dying testate”), that document will need to be accepted by the probate court before any of its provisions can be carried out. If the individual passed without a will or other estate document (called “dying intestate”), then Florida statutes specify how a person’s probated assets are to be handled.
Three Types of Probate and Why it Matters
In the State of Florida, there are three different probate administration processes that can be employed to handle a decedent’s estate: formal administration, summary administration, and disposition of personal property without administration. The administration process used in any particular case will depend on a variety of factors, including the size of the decedent’s estate.
- Personal property is exempt from the claims of creditors under Florida’s Constitution and the personal property consists of household furnishings of a value of $10,000 or less and automobiles in the decedent’s name and either used by the decedent or his or her immediate family members as personal automobiles; and
- Personal property not exempt from the claims of creditors under Florida’s statute whose value does not exceed $6,000 of funeral and burial expenses and reasonable and necessary medical and hospital bills incurred in the 60 days immediately preceding the decedent’s death.
This disposition typically requires you as the decedent’s personal representative or executor to complete a verified form and submit it along with a copy of the death certificate, receipts of expenses, the decedent’s will (if any), information concerning the value of the decedent’s personal property, and a filing fee.
For summary administration, the executor or any beneficiary files a petition for summary administration. The petition must set out how the estate qualifies for summary administration and describe the decedent’s assets, the value of the assets, and who inherits each asset. This petition must be signed and verified by the decedent’s surviving spouse and any other beneficiary. If a beneficiary to the decedent’s estate is not available to sign the petition or refuses to sign the petition, the petition must be formally served with a copy of the petition along with notice that the petition has been filed.
Once the petition is filed and accepted by the court and the estate is found to qualify for summary administration, the court issues an order that all probated assets are to be released to the lawful beneficiaries. If the individual died testate, the will or another document will direct the disposition of the assets; if the individual died intestate, Florida law will govern who receives the assets.
If the decedent left a will, the representative will ask that the will be admitted. If it is admitted, then the representative can follow the lawful wishes of the decedent as expressed in that document. Any interested party – a beneficiary or heir – can challenge the validity of the will if they believe that the decedent was not legally able to make a will when the will purports to have been made or if they believe there is some other reason why the will should not be followed.
Once a court names a personal representative, that person is given Letters of Administration. These “letters” actually consist of court orders that give the representative legal authority to administer the decedent’s estate. This gives the representative the authority to begin collecting the decedent’s assets, inventorying and valuing them, and paying the expenses (debts and taxes) of the decedent. By this time, a formal legal notice will have been made informing creditors of their rights to file claims against the estate. Once assets have been identified and valued and expenses paid, whatever is left is distributed according to the will’s instructions or according to Florida law. After all this, the representative must file a “final accounting” document with the court stating where the estate’s assets went. Receipts for payments and distributions must also be filed with the court before the estate will be closed and the representative relieved of his or her duties.
Depending on the size of the estate and other factors, this formal administration process can last anywhere from several months to several years. In protracted cases, the representative may be required to file periodic accountings with the court which state what activity has taken place in the case.
As you can see, there are significant differences between the various forms of disposition and probate administration. For most families, choosing how to administer a deceased loved one’s estate will be governed by the facts of his or her estate. While many may prefer the speed and ease of summary administration or disposition of personal property without administration, these options will not be available in all situations.
Estate Planning Considerations in Light of Probate Administration
The time to begin thinking and planning for the future is now. While you are able to create an estate plan yourself, having the assistance of an estate planning attorney can help ensure your wishes are carried out and that your family is prepared. When making your estate plan, consider:
- How do you want your assets handled? If you have a number of beneficiaries and heirs, a will or similar document may be the best option to ensure certain property goes to the people you intend. Conversely, if you have no heirs or few significant assets, a will may be less important to you.
- What can your family expect? Are your family members, friends, or the person you want to act as your personal representative aware of what type of probate administration they can expect? If you anticipate summary administration of your estate, for instance, does your representative know what to do? If formal administration is required, does your representative know how to begin the process? If not, how will this information be given to the representative?
- Do you want to limit the probate administration of your estate? An estate plan involving trusts, for instance, can greatly reduce the need for any of your assets to pass through probate. There are other methods by which probate can be avoided. It is best to discuss this with our estate planning attorneys, as specific documents carrying out this intention will need to be prepared.
Many Florida residents will have their estates administered by a probate court. Precisely what this administration looks like can vary, however. For estates that are particularly small and where a representative is merely seeking reimbursement of expenses paid, the estate may be disposed of through disposition of personal property without administration. Smaller and/or older estates may be summarily administered, but a sizeable number of estates will be administered formally. Being aware of the differences between each type of probate administration can help you and your Ayo and Iken attorney in drafting an estate plan that embodies your wishes and can help your family or personal representative know what to do upon your death.