In Florida, as in all other states, probate describes the legal process of bringing together the assets of a person’s estate, paying the debts, and then distributing the assets to the beneficiaries and heirs. A deceased person’s assets comprise their “estate.” The deceased person is referred to as the “decedent.” If the deceased person has left a will, the person is the “testator” of the will.
Probate is meant to ensure that the decedent’s assets are distributed per the decedent’s final wishes if that is expressed in their valid will.
If a person does not have a valid will, they are said to be “intestate” in legal terminology. If a person dies intestate, their estate is distributed according to the laws of intestacy in Florida if that is where the person lived at the time of their passing.
Additionally, during the probate process, any disputes arising over the decedent’s will are resolved, as are several other issues, such as paying taxes and any other debts or obligations that the decedent may owe.
The following legal matters are generally resolved during the probate process:
- Verification of the Will: Verification that the decedent’s will is legal and valid;
- Inventory: The decedent’s property must be located and inventoried;
- Appraisals: The decedent’s property must be appraised, if necessary;
- Taxes and Other Debts: The decedent’s taxes and any other outstanding debts must be paid;
- Distribution of Remaining Assets: Distribution of the decedent’s assets as provided by the decedent’s will or by the laws of intestacy if the decedent does not leave a valid will;
- Final accounting: There must be a final accounting of the estate.
Of course, not all of a person’s property passes through probate. The following are examples of assets that do not pass through probate:
- Joint Tenancy: Property that a decedent owns in joint tenancy with another person passes directly to the joint tenant or tenants outside of probate;
- Designated Beneficiary: If the decedent has designated a beneficiary for an asset, e.g., a bank or retirement account, then the asset is transferred as directed by the designation;
- Life Insurance Payouts: A life insurance policy usually specifies a person or entity to receive the payout, and the company pays this person as the policy directs outside of probate;
- Living Trusts: Assets in a living trust do not pass through probate.
If a person’s entire estate comprises only assets that pass outside of probate, then probate might not be necessary. It may be avoided completely.
How Much Does It Cost to Probate a Will?
The size and complexity of the estate dictate the cost of probate. The Florida procedure known as “summary administration” costs less than formal administration because formal administration is a more complicated process and involves more work.
An estate may have to pay the fees for an attorney to represent the personal representative (PR), who is the person who administrates the probate process. There are other court costs involved in estate administration also. Filing fees between $345.00 and $405.00 must be paid to the probate court for each case. In formal administrations, publication of a notice to creditors must be published in a newspaper of record, and this generally costs about $250.00.
What Is Disposition Without Administration?
Under Florida law, disposition without administration is known as a “no probate” filing. This is the process in which probate is unnecessary because the final expenses of the estate are more than the value of the estate property. In short, disposition without administration may be used for very small estates that do not include any real property and meet certain other requirements.
The estate may include the following assets as well:
- Exempt Property: Exempt personal property, which is household goods or furnishings with a value of $20,000 or less,
- Motor Vehicles: No more than 2 motor vehicles,
- Certain Qualified Plans: A 529 and qualified tuition plans,
- Teacher Retirement: Certain teacher retirement benefits;
- One Thousand Dollars in Personal Property: Personal property up to $1,000 in value which is exempt from creditors;
- Other Property: Other property the value of which is not greater than what is owed for final expenses, i.e., funeral costs of up to $6,000, the cost of medical care for the decedent’s final illness within the final 60 days before their death,
- Ten Thousand in Other Property: Up to $10,000 in other property.
Any remaining assets are also exempt from creditors. A person may file for disposition without administration by requesting the appropriate forms from the county clerk’s office or its website in the county in which the decedent resided.
Additionally, a person is likely required to provide an itemized statement regarding any funeral or final medical bills for the person seeking payment from the estate of the decedent. Such final costs and expenses should be reimbursed from the decedent’s estate if there are enough assets in the estate to make that possible.
If the decedent did not leave a will in Florida, the estate must also fulfill the following 2 requirements to qualify for disposition without administration:
- Passing over 1 Year Before: The deceased person must have passed away more than 1 year previously,
- No Probate Pending: There is no probate proceeding pending in Florida.
No property has to pass through probate with this process. Instead, to request payment of what was left to a person named as a beneficiary in the will or what the person is entitled to receive under the laws of intestacy in Florida, the person files a form called “Disposition of Personal Property Without Administration,” which is available from the clerk of the court and on the websites of many Florida circuit courts.
The person lists all of the property the decedent owned and its value. A person must submit a request for disposition without administration, along with a certified copy of the death certificate for the decedent. The person should also file the decedent’s will in Florida if there is one.
What Is Summary Administration?
Summary administration is another form of the probate process that may be used in Florida under certain circumstances. Summary administration is an option for probate only in cases in which the decedent’s death occurred more than two years before the process began or the value of the assets and property of the estate to be distributed is less than $75,000.
When calculating the value of the property that has to be distributed, it is important not to include property that would not normally pass through probate, such as assets held in a living trust, joint tenancy property, or the proceeds of a life insurance policy, to name a few.
If the estate is eligible for summary administration, the court does not appoint a personal representative. Rather, anyone who stands to benefit from the probate process files a petition in the probate court for summary administration, listing the value of the property in the estate and the person to whom it should be distributed. The court then issues an order that passes the property to the people named in the petition.
How Long Does It Take To Probate a Will?
As in many things that are legal, the answer is that it depends. It depends on the size and complexity of the estate. Estates with greater value and a range of assets may take longer. If there are any disputes, that would prolong the process.
Generally, probate lasts as follows:
- Three months for a simple estate;
- One year for a standard formal probate;
- Two years or more for complex probate cases.
What if the Executor Does Not Probate the Will?
In Florida, the PR of an estate is required by law to file the original will with the probate court within 10 days of learning of the testator’s death.
If the PR fails to file a will within the time mandated by law, they could face some serious consequences. While failing to file a will in probate court is not a criminal offense, beneficiaries might file civil lawsuits against the personal representative. The PR could be held financially liable for damages if not criminally liable. The probate court could have the PR removed and appoint a new one.
If the PR has not filed the will with the intent to inherit or take the entire estate for themselves, then this could be seen as criminal fraud, and criminal charges are a possibility.
For example, a will might state that the PR is not to receive anything from the estate but that the whole estate is to go to a charity or a distant family member. If the PR hides the will and files the estate as intense or without a will, the PR could face criminal charges if the will is discovered and the subterfuge comes to light.
If a person is not sure about filing a will or opening probate, it is best to seek advice from a local Florida lawyer who can guide them. If a person really does not want their estate to have to go through the probate process, the time to plan to make that happen is when they plan their estate before they pass away.
May an Estate Be Settled Without Probate?
- Disposition without Administration: This option is available for small estates if the estate consists of only personal property and no real property, with a value that is not greater than the amount needed to cover funeral expenses and medical bills;
- Summary Administration: Estates with a value of $75,000 or less qualify for this simplified probate process. The value excludes the value of the decedent’s homestead property. Summary administration is quicker and cheaper than formal probate. It may also be used if the deceased person has been dead for more than two years;
- Trust Administration: If the decedent had a properly funded living trust, the estate can avoid probate altogether. Trust administration is a private process that allows assets to be distributed directly to beneficiaries without court involvement.
Should I Hire a Florida Attorney for Help With Probate and Will Issues?
As can be seen, there are several different ways to probate a will in Florida. So, it can be helpful to consult with a qualified and experienced Florida probate attorney who can help guide you through the process.
LegalMatch.com can connect you to an experienced probate attorney who will be able to explain which probate process is best for your situation. Your lawyer can begin the probate process and appear on your behalf at any court hearings that may become necessary.
Additionally, if there is any conflict regarding the assets or property being distributed in the will, they will be able to represent your interests in court.
