When a person domiciled in Florida passes away with assets in their individual name and with no designated beneficiary, an estate needs to be open to manage the decedent’s affairs. This court process is called a probate administration. Probate involves identifying and marshaling the assets of the decedent, notifying the decedent’s beneficiaries and creditors of the decedent’s death, paying the decedent’s debts and expenses of administration, and ultimately distributing assets to the proper persons. Who inherits from the decedent depends on whether the decedent was survived by a spouse and/or minor child, and whether the decedent executed a valid last will and testament devising his assets. When the decedent does not have a last will and testament, they are said to have died intestate (meaning without a will) and their assets are distributed to the survivors as outlined in the Florida Statutes. It is a common misconception that the decedent’s assets will escheat (i.e., pass) to the state of Florida. However, the assets of a decedent will escheat to the state of Florida only when the decedent passes away with no last will and testament and no family members can inherit under Florida Statutes.
It is true that the probate administration process can be time-consuming and cumbersome, something that most people strive to avoid. However, the reality is that many people do not execute the proper lifetime estate planning documents necessary to avoid probate. So, for the decedents’ estates that are subject to probate, probate administration is an extremely important process that, except in very few and limited circumstances, must by law be managed by a qualified lawyer. There are two main types of administration—formal administration and summary administration.
In a formal administration, an executor is appointed. This executor is known as the personal representative of the estate. Florida Statutes require the personal representative to be represented by an attorney. The personal representative is often nominated in the decedent’s last will and testament, or if the decedent died intestate, is the surviving spouse or the person selected by a majority of the heirs. It is important to note that typically a non-relative living out of state is not qualified to be a personal representative in Florida. Similarly, convicted felons are not qualified to serve as a personal representative. In formal administrations, all creditor issues must be resolved prior to the ultimate distribution of assets to the heirs or beneficiaries. Resolving creditor issues includes publication of notice to creditors in the local newspaper. The personal representative is a fiduciary who has duties and responsibilities to the beneficiaries as well as the creditors.
How long does the probate process take? In the best case scenario, estates not required to file a federal estate tax return close within five or six months, assuming that there is no litigation, such as a will contest, dispute between beneficiaries, or dispute with a creditor. For those estates required to file a federal estate tax return, the estate can typically not be closed until the closing letter is received from the IRS, which can be a lengthy process. When the decedent has passed away at least two years before the probate administration takes place, the process may be quicker. Furthermore, for more lengthy estates and depending on the facts, sometimes the Judge will authorize a partial distribution to beneficiaries while outstanding issues are being resolved.
So, what takes so long? Although this is not an exhaustive list, here is a list of tasks that must be accomplished:
- Identification, valuation and safeguard of assets.
- Identification and notification of possible heirs and creditors.
- Assessment of the validity of claims against the estate of the deceased.
- Publication of all legally required notices.
- Management/investment of assets and real estate.
- Application to the court for authorization to liquidate and distribute assets to beneficiaries and creditors.
- Filing and payment of federal and state income, estate, and gift tax returns.
- Objection to the filing of improper claims.
- Defense of lawsuits brought by creditors, if filed.
- Payment of valid claims of creditors.
- Employment of advisors and professionals to assist in administration.
- Payment of administrative expenses.
- Preparation of an inventory of assets and a formal accounting.
- Distribution of statutory amounts (including exempt property) or assets to the surviving spouse or dependent family members.
- Distribution of assets to beneficiaries.
- Closure of probate administration.
All of the above steps are parts of a “formal” probate administration. Florida does provide some alternate procedures in certain limited situations. “Summary” probate administration is generally available if the decedent died more than two (2) years ago or the assets of the decedent’s estate are less than $75,000.00, not including the decedent’s homestead property. However, in a summary administration, no personal representative is appointed, so there is no one with authority to sign documents on behalf of the estate. Therefore, if the decedent died, for example, with real property that is not the decedent’s homestead, there is no one to execute a deed from the estate to the proper beneficiaries. Additionally, in a summary administration where the decedent has not been dead for at least two years, the petitioner is required to make a diligent search for any known or reasonably ascertainable creditors and make provision in the petition for payment to the creditors. Anyone who receives assets pursuant to an order of summary administration may be liable to creditors of the decedent until two years after the decedent’s date of death.
Our firm represents both personal representatives and beneficiaries of estates. As the personal representative, we ensure that you comply with the Florida Statutes and your fiduciary duties, as well as provide proper notice to the other interested parties. Although the fiduciary is obligated to retain counsel, all interested persons have a right to counsel. We represent beneficiaries of estates either when there is litigation or when a beneficiary just wants to ensure they understand the process and their rights. While the personal representative’s attorney has certain duties to beneficiaries, the attorney does not represent the beneficiaries and cannot be relied on for legal advice pertaining to the option(s) of the beneficiary.
Contact us for a consultation.