Probate: The Basics

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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.

 2. 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.

 3. 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.

 4. 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.

 5. 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.

 6. 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.

 7. 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.

 8. 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.

 9. How much does Probate cost in Florida?

Florida is one of the few states that sets out, in Fla. Stat. § 733.6171, lawyers’ fees that are presumed to be reasonable for estates of a certain value. The fee is based on the value of the assets that are ultimately subject to probate, plus income earned during probate. The value of homestead property or other exempt property is not counted.

Here are the statutory fees:

  • Value of estate up to $40,000: $1,500
  • $40,000 to $70,000: $2,250
  • $70,000  to $100,000: $3,000
  • $100,000 to $1 million: $3,000,  plus 3% of the value over $100,000
  • $1 million to $3 million: $30,000, plus 2.5% of the value over $1 million
  • $3 million to $5 million: $50,000, plus 2% of the value above $3 million
  • $5 million to $10 million: $90,000, plus 1.5% on the value above $5 million
  • More than $10 million: $165,000, plus 1% of the value above $10 million

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