Probate

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  1. What is Probate?

Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries. In most Florida counties, the probate system is conducted in a specialized probate division of the Circuit Court, under the oversight of one or more probate judges.

  1. How is Probate Initiated?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as Personal Representative, also known as the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition for Administration.

 

  1. Who is Eligible to Serve as Personal Representative?

A bank or trust company operating in Florida, any individual who is resident in Florida, and a spouse or close relative who is not necessarily resident in Florida are all eligible to serve as the Personal Representative. Nonrelatives who are not resident in Florida are not eligible to serve as Personal Representative.

 

  1. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, the person chosen by a majority of the beneficiaries in interest of the estate shall choose the Personal Representative. If there is no will, Florida law provides that the surviving spouse may serve, or, if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest shall serve.

 

  1. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate estates to retain a Florida probate attorney. Although the Florida probate forms are available to the public, these are of no use to a non-attorney.

 

  1. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal Representative, based on a percentage of the assets of the probate estate.

 

  1. Is the Family of a Deceased Person Entitled to a Portion of the Estate?

Florida law provides for a family allowance for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, thirty percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Florida resident is entitled to disinherit adult children, for any or no reason. Of course, if it can be shown that the adult children were disinherited as a result of the influence of another, they may have recourse through the probate court.

 

  1. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

 

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, particularly in the case of a surviving spouse choosing to take an elective share against the estate.

 

  1. What Happens in Probate?

The probate process may be contested or uncontested.  Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received.  Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will.  The majority of probated estates, however, are uncontested.  The basic process of probating an estate includes:

  • Collecting all probate property of the decedent;
  • Paying all debts, claims and taxes owed by the estate;
  • Collecting all rights to income, dividends, etc.;
  • Settling any disputes; and
  • Distributing or transferring the remaining property to the heirs.

Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death.  If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate.  The administrator will fulfill many of the same duties listed above.

Typically, people may leave property to any person they wish, and may make such designations in their will.  However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent’s wishes may have to be overridden by the court.  For example, in most states, a spouse is entitled to a certain amount of property.  Furthermore, creditors may have a claim on the property of the estate.  Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate.  The more complex and sizable the estate, the longer and more time-consuming this process can be.

 

10. What are the costs associated with Probate?

The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include:

  • Fees of the personal representative;
  • Attorneys’ fees; and
  • Court costs.

 

If you or someone you know has recently had a death in the family and needs an experienced attorney to help them sort out the estate and handle the probate, please contact Bauer Law Office P.A. at (305) 712-7979

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