Experienced Jacksonville Probate Lawyer Ready To Assist You
Is Probate Required for All Florida Residents?
No. Whether the probate administration is necessary depends on several factors including; the type of assets, the title of the assets, and whether the person responsible for the estate seeks a bar to creditor claims. If property owned by the decedent has a beneficiary designated, the property is jointly owned with rights of survivorship, tenants by the entireties. or life estate or enhanced life estate deed, probate may not be required. Conversely, probate is necessary if the decedent owned bank accounts in their name alone without a beneficiary designation, real estate held in their name alone, or life insurance policies with no beneficiary designated. Other reasons to open probate may be pursue a wrongful death claim or continue with any lawsuit where the decedent would have been the beneficiary of an interest. Additional reasons to open an estate is where the decedent holds a promissory note, is a lienholder, or owns an interest in a business in their name alone, among other reasons. The key element in common is some type of asset is held by the decedent that cannot be transferred after death. In some cases, the law allows creditors to open an estate if they believe the estate has assets and they want to be sure their claim is preserved and the estate is administered properly. There is no deadline to open probate and years may pass before interested parties may have identified probate property. Some deliberately will wait two years to open an estate to avoid the claims of creditors, who have not already filed claims in the county where the decedent died. If you require assistance, seek a knowledgeable Jacksonville probate lawyer who can give you a better understanding of what is involved in planning. Let our reliable legal team assist you with the complex legal process and advise you about the steps that you must take as a newly appointed administrator.
Types of Probate
There are four types of probate administration most commonly used in Florida. Three of the four types of probate administration do require that one be represented by an attorney.
The first type of probate is called “formal administration”. This is the court process where the judge will admit a will into probate and appoint a personal representative to administer the estate.
- Admitting Will to Probate. The original will must be presented to the judge to begin the probate process. If only a copy of the will can be found, there is a probate proceeding that will allow evidence to show that the will was not destroyed or lost. Note that even when you find the original will, that will, absent a court order, cannot be used to transfer title or prove ownership. The will gives one no legal authority to prove ownership or to allow for the transfer of ownership to those named in the will without it being “admitted” to probate and the proper person being appointed to act.
- Probate Without a Will. If there is no will, the judge will appoint a personal representative and follow the laws of intestacy to determine who would inherit the property. If the will names who should be the personal representative, and they are qualified under the statutes, it is presumed that the named personal representative will be appointed. Without a will, the statutes provide an order of preference of who should be appointed. For example, the spouse of the decedent would have priority over their adult children.
- Overall Duties of the Personal Representative. The personal representative will manage the estate and is accountable to the court, valid creditors who file claims, and the beneficiary. The administration will take a minimum of 3 ½ months, or after the audit of the court clerk and judge, whichever is later. Probate can also extend for years depending on the complexity of the issues in probate. There are many reasons probate can extend for years. Some reasons include; whether there is a dispute over the validity of the will, challenges to the actions of the personal representative, creditor disputes, Internal Revenue Service audits, and difficulty in managing and dividing assets are a few issues that can arise during probate administration.
- Duty to Find Assets. The personal representative has many duties including finding and marshaling all assets of the decedent, even property located outside of the State of Florida. This can be done by doing a search of any evidence of property owned. Searching property can be done in many ways including looking for evidence of property in the decedent’s home, in their mail, through an internet search, speaking with family members, and even speaking with the estate plan attorney and financial advisor for the decedent. Once the property is identified, the personal representative will have the authority to take control of the asset. The personal representative is required to file a confidential inventory of the property with the court no later than sixty days after their appointment. The court can sometimes grant extensions where locating property has proved difficult. Amendments can also be approved if additional property has been identified. All interested parties to the proceedings have the right to review the inventory and file an objection to what was filed.
- Duty to Find Creditors. The personal representative also has a duty to identify and settle the claims creditors before the beneficiaries can receive their proceeds. The personal representative is a fiduciary and must deal fairly with both the creditor and the beneficiary. The personal representative can be personally liable for misrepresenting the assets of the estate to avoid creditors. Even if creditor claims leave little or no assets for beneficiaries, it is still the duty of the personal representative to settle the creditor claims first. Identifying creditors can be done in two ways, publishing a notice in the newspaper and notifying known creditors directly to file a claim in the probate court. There is a time limit the creditors must file claims. The deadline is three months after publication of the “notice to creditors” in the newspaper or 30 days after the date of service on the creditor. The personal representative does have the authority, after approval of the beneficiaries, to pay claims they believe are valid without the necessity of the creditor filing the claim.
- Duty to Find Beneficiaries. The personal representative also has a duty to take reasonable steps to find the beneficiaries of the estate. It is not unusual for a personal representative to state they have no idea how to reach one or more beneficiaries. Perhaps the personal representatives do not know the beneficiaries or are estranged from the beneficiaries. Thanks to technology, there are many ways to find people even though it may be an expense. Whether or not the person is found, the personal representative cannot give that person’s share to the other beneficiaries, unless that person is deceased. If that person is deceased, the will or Florida law will dictate how the property passes. Sometimes a will may have language that addresses missing beneficiaries. If the beneficiary cannot be found, their share must go to the court registry in the county where the estate is being probated.
- When Probate is Concluded. Probate is concluded after all the assets are collected, creditor claims are settled, and beneficiaries receive the assets. There is a specific order of priority of how the assets must be paid and who can be paid first. Note that any audit or open issues with the Internal Revenue Service, or unsettled lawsuits can delay in closing the estate. The IRS is not bound by Florida creditor deadlines. An accounting of what assets were collected, bills paid, and distributions made is filed confidentially with the court and a copy given to all parties of the estate. If no objections are filed and the court approves the accounting(s), probate can be closed.
The second most common type of probate is called “summary administration” which, in theory, is a more speedy, simpler process when the estate is valued less than $75,000.00. This value does not include the value of homestead and other exempt property. It can also be used when the decedent has been dead for more than two years. Notice to creditors through publication in a newspaper is not required by statute, although some courts will still require it. If notice is required, the administration will not be able to be closed until the creditor period has expired which is a minimum of 3 ½ months, 30 days after service to a creditor or when approved after the audit of the court clerk and judge, whichever is later.
The third most common type of probate is called “ancillary administration” which is a type of probate administration for nonresidents of Florida who own assets in Florida. The primary probate administration would normally be in the state of the decedent’s residency when they died. The personal representative from the other state is called the foreign personal representative. The process of administration is largely the same as formal administration, including publishing notice to creditors in the county where the probate was opened.
Disposition Without Administration
Another type of proceedings, that does not require the same formality, or the same level of court review, is the “disposition without administration”. If the decedent left only personal property, exempt from the claims of creditors, and any other personal property that does not exceed the cost of the funeral and medical expenses of the last 60 days of illness. A lawyer is not required to present this request by an application to the court. Any interested party can go directly to the probate clerk and request the necessary forms. If approved, the judge typically issues a letter or order approving distribution to those entitled to the property.
Contact a Proven Jacksonville Probate Attorney Today
Our highly-skilled legal team can help you with probate issues during these difficult times. Discuss your case with an experienced Jacksonville probate lawyer. We will assist you in every step of the process. Call us directly or contact us online to set up an appointment.
For more information check our most recent probate blogs which can be found here: