Probate Administration - FAQs

Probate is the court process established to administer the decedent’s estate, including identifying beneficiaries, arranging for payment of valid creditors, and ultimately distributing the decedent’s estate assets to their beneficiaries. Probate is generally required when a person dies owning assets titled solely in their own name (i.e., assets which are not jointly owned with a right of survivorship, assets that are not titled to a trust, and assets that do not have a valid beneficiary designation), which generally are subject to the probate process.

If a decedent left behind a valid Last Will and Testament, the person or persons designated in the Will to serve as personal representative (“PR”) have preference in appointment, so long as they meet the statutory qualifications to serve as PR in Florida. If a decedent died intestate (meaning that they did not have a valid Will), Florida law supplies a list of persons who may serve as the PR in a descending order of preference, beginning with the surviving spouse, if any. In any event, the person seeking to be PR must petition the court for appointment as such and obtain the court’s approval.

The PR’s main duties including marshalling the decedent’s assets, providing notice of the estate administration to potential creditors and beneficiaries, paying valid creditor claims and any taxes that may be owed by the decedent and/or their estate, and distributing the assets to the beneficiaries.

No, not all estates must go through a full “formal” probate. In a “formal administration,” a person seeks appointment as personal representative to administer a decedent’s estate. However, in certain circumstances, a “summary administration” may be conducted, wherein a personal representative is not appointed and the court simply enters an order authorizing the distribution of assets to a decedent’s beneficiaries. Summary administrations are typically only available when a person’s assets are worth less than $75,000 and/or if a person has been deceased for more than two years before the probate process is initiated.

The length of Florida probate can vary depending on a number of factors, including the number of beneficiaries, the number and nature of creditors with claims against the estate, the extent and nature of the decedent’s assets, etc. For relatively “simple” estates, the formal administration process often takes between four and nine months, while more complicated estates may go through probate for years.

If probate is opened within two years of a person’s death, Florida law requires the publication of a Notice to Creditors, alerting the world to the decedent’s death and the timeframe within which creditors have a right to assert claims against the decedent’s estate. For any timely-asserted claims that are otherwise not objectionable, the personal representative must arrange for payment of those claims out of the estate assets prior to ultimate distribution to the beneficiaries.

Under Florida law, a person’s homestead property is exempt from claims of their creditors, and so long as the homestead property is validly devised, a person’s heirs may receive the homestead property free and clear of any claims by most of the decedent’s creditors (though the IRS, mortgagee, any other lienors on the property, etc. may still seek to enforce claims against the homestead property). Similarly, certain property, such as household furnishings up to $20,000 and up to two vehicles, may be determined exempt from claims of a decedent’s creditors by the court.

Yes, beneficiary designations can help avoid probate. Certain types of assets, including bank accounts and life insurance policies, allow for pay-on-death or transfer-on-death designations, which have the effect of passing ownership of those assets to the designated beneficiaries outside the probate process. Designating beneficiaries on assets such as these is often an important estate planning tool that may help avoid the need for probate.

Under Florida law, a person seeking appointment as PR of an estate must have a Florida lawyer, unless that person is themself a Florida lawyer. The PR’s attorney can seek payment for their services out of the assets of the Estate. The PR’s attorney’s fees are payable from the estate assets before nearly any other type of claim against the estate.

Yes. Under Florida law, compensation of 3% of the value of the estate assets is considered reasonable for “ordinary” services rendered by a PR. A PR may receive additional compensation for rendering “extraordinary” services to the estate, subject to approval by the court.

Yes, a PR may be removed by the court for a number of reasons, including breach of fiduciary duty, incapacity, conflict, or failure to perform required tasks. Persons interested in the estate, including beneficiaries, may petition the court to have the appointed PR removed and a new person appointed in their place.

In probate, the PR is responsible for ensuring that any required tax filings are made and any taxes owed are paid out of the estate assets.