What is Probate?
Probate is the court supervised process that begins after a person’s death (“decedent”) and is done for the purpose of: 1) confirming the validity of the will, if any; 2) identifying and taking possession of the assets; 3) paying the decedent’s debts, and 4) distributing the assets to the beneficiaries. References to the decedent’s probate property is called the decedent’s “estate”.
Is Probate Necessary?
Maybe not. If there is property that is in the sole name of the decedent, probate is required. Proper planning by the use of beneficiary designations, joint tenancy with rights of survivorship, or by use of a trust are some ways to avoid probate.
Where is Probate?
In Florida, probate administration is in the county where the decedent was domiciled. Proof of death is required and typically that is done by filing a certified death certificate with the court. Typically, the court will rely on the domicile listed on the death certificate.
Who Begins the Probate Process?
Only an interested party (such as an heir, one named in the will, or a creditor) can file a petition for probate administration. If there is a will, the original must be filed. There is a formal process to confirm the validity of the will. If only a copy is found, more complicated steps must be taken to admit the copy to probate. If there is no valid will, then the probate will proceed under Florida intestacy rules.
Who is the Personal Representative?
A Personal Representative is the one appointed to carry out the functions of the probate administration. The Personal Representative can be an individual, bank or trust company. If there is a valid will, the person named in the will has first preference to be selected Personal Representative. If there is no will, the surviving spouse has first preference. There are certain qualifications that must be met. Some examples of an unqualified person includes: 1) convicted felon; 2) under the age of 18; 3) mentally or physically unable to serve, or 4) non-resident of Florida that is not related to the decedent.
Does Probate Require I Personally Pay the Decedent’s Debts?
No. In Florida, the decedent’s debts are only paid from the assets of the decedent’s estate. How much debt the decedent has does affect your share as beneficiary, but the Personal Representative or family member is not required to pay the decedent’s debts. There is an obligation, however, that the Personal Representative notify known or reasonably known creditors. Notice of probate is also published in the newspaper for the benefit of unknown creditors. There is a deadline for how long the creditor has to file a claim, otherwise they will lose their right to collect.
Does Probate Allow Us to Stop Paying the Mortgage, Taxes, or HOA Dues?
No. A secured creditor, such as a mortgage company, can still exercise their rights to foreclose, even in probate. Tax sales and HOA liens are also still possible.
When is Probate Over?
It depends. There is no set date that probate must end. In Florida, the court does require an explanation as to why probate administration must continue if it exceeds one year. Probate is concluded after the assets are collected, creditors are paid, and the assets are distributed to the beneficiaries or heirs. Obviously, challenges to the will, disputes with creditors, disputes with the Personal Representative, or unresolved tax issues with the IRS, among others, are reasons for a longer probate.
Rose Marie K. Preddy, Esquire, owns the Preddy Law Firm, P.A. in Jacksonville, Florida. Ms. Preddy, a probate attorney in Jacksonville, has over 20 years of legal experience representing families and other clients in estate planning, guardianship and probate matters. Please do not hesitate to contact St. Johns County probate attorney Rose Marie with any questions.