Boca Raton Probate Lawyers
Estate planning is the process of creating Wills, Trusts, and related documents that dictate how a person’s estate will be distributed after their death. Probate is the legal process required to make sure a Will is valid and is given its proper effect, and that the entire estate is distributed in accordance with applicable estate planning documents and the requirements of Florida law. While estate planning can minimize the time, hassle, and expense of probate, probate itself can only be avoided under limited circumstances.
Going through probate requires going to court and completing a long list of required tasks, some of them more complicated than others. The attorneys at SAMUELS WOOD PLLC can help you understand the probate process and assist you with some of the more difficult tasks. If you are an estate administrator or personal representative, the executor of a Will, or an heir or beneficiary with questions about probate and your inheritance, SAMUELS WOOD PLLC can help. Contact our experienced Boca Raton probate lawyers today.
Florida Probate Process
Probate starts by petitioning the court to open a probate estate and applying to be appointed as the estate’s personal representative. Often, the person to be appointed is named in the Will as executor. The proper court is typically the court in the county where the decedent lived at the time of death. The court will open the probate estate by assigning a case number and issuing Letters of Administration to the personal representative, allowing them to act on behalf of the estate.
The Will, Death Certificate, and other documents are delivered to the court to prove that a death has occurred and that the Will presented is the decedent’s valid Last Will and Testament. The court will examine the Will to determine its validity. The very word “probate,” in fact, comes from the Latin meaning “to prove.” A Will that was signed in front of a notary and duly notarized is considered to be “self-proving,” and having the Will notarized is the recommend and standard practice. If the will wasn’t notarized, additional evidence might be required to prove its validity, such as deposing or calling in witnesses to attest that the Will in question was signed by the testator in their presence and to authenticate the witnesses’ signatures.
Next, a Notice to Creditors is sent to all known creditors of the estate. This notice is also published in the local newspaper and other appropriate publications for three months. Creditors who might have a claim against the estate, such as hospitals or credit companies, have three months to bring their claims forward to get paid from the estate. It’s the job of the personal representative to ensure those claims are valid and pay them, or to dispute and even litigate potentially invalid claims such as stale debts or fraudulent bills. Any taxes owed by the estate must also be paid before heirs and beneficiaries can receive their inheritance.
While all this is going on, the personal representative must also identify and collect all assets belonging to the estate, including real and personal property such as the decedent’s home, vehicles, personal belongings, cash in bank accounts, investments, etc. The executor of the estate must maintain these assets in good condition during the probate process, such as making sure the house and yard are kept up and that money is prudently and properly invested.
The representative will then create a plan for the distribution of the estate according to the Will and file a detailed accounting of the estate with the court for court approval.
Once debts and taxes have been paid and the court has approved the distribution plan, the personal representative can take steps to distribute the remaining assets to heirs and beneficiaries in accordance with the terms of the Will or according to Florida laws on intestate succession if the deceased did not leave a valid Will. This step might require selling the home or other property and distributing the proceeds accordingly. If any heirs challenge the Will as invalid or contest their inheritance, these claims will have to be resolved through litigation or other legal means.
Can Probate Be Avoided?
Probate is required to dispose of assets that are titled solely in the name of the decedent at the time of death, as well as assets that designate the estate as the beneficiary to receive those assets. Probate can be minimized by estate planning that utilizes revocable living trusts to transfer title to property outside of probate, along with other documents such as life insurance policies, bank accounts, and retirement accounts that are either jointly titled or name specific persons as beneficiaries as opposed to designating the estate itself as a beneficiary. Probate is still required to give notice to creditors and wind up the decedent’s financial affairs, but thoughtful estate planning could reduce the time probate takes to as little as possibly allowed by law.
Florida law also allows for an alternative to formal administration known as summary administration. Summary administration is available for estates with non-exempt property valued at $75,000 or less, or when a formal administration (probate) has not been opened within two years since the date of death. Additionally, Florida has a process called Disposition of Personal Property Without Administration that allows for a faster way to transfer property without going through probate that is available in limited circumstances where the final medical costs and funeral expenses exceed the value of any non-exempt property in the estate, and no real estate is involved.
Florida Probate FAQs
Probate can be a daunting process for persons named as executors of a Will or personal representatives of an estate, and it can be frustrating for family members to wait for months to receive their inheritance and find closure after the loss of a loved one. Having expert assistance in the process is key to getting through probate efficiently and successfully. Below our estate planning specialists answer frequently asked questions about probate in Florida. For help with probate in Boca Raton or surrounding areas, call SAMUELS WOOD PLLC for advice and assistance from a team of caring and dedicated Florida probate attorneys.
What is probate?
Probate is the court-supervised process of giving effect to a person’s Will and settling their estate according to the terms of the Will and Florida law. When a person dies, a probate estate is opened. Creditors are notified of the estate and given an opportunity to present claims against the estate. Valid debts as well as any taxes owed are paid before the estate can be distributed to heirs.
If the deceased left a Will, the Will is admitted to probate, and if it is determined to be valid, a Personal Representative is appointed by the court to distribute the estate according to the terms of the Will. If the person dies without a valid Will, the court will distribute the estate to surviving family members according to Florida laws of intestate succession.
Other parts of the estate might pass to heirs and beneficiaries outside of the probate process, such as assets held in trust, property that is titled jointly or held in joint accounts, or assets transferred through life insurance policies or transfer-on-death bank accounts, for example.
How long does it take to go through probate?
It can take a year or more to settle an estate through the probate court as there are many steps in the process such as. Creditors must be given notice and a three-month period to present claims against the estate, which must be paid, litigated if disputed, or otherwise resolved. All heirs must be located and notified, and they might challenge the terms of the Will. A Personal Representative must be appointed. Property must also be located, inventoried, and in some cases, sold so the proceeds can be distributed. All of this takes time, and the larger or more complex the estate is, the longer it can take to complete the probate process. Thoughtful estate planning can minimize the time and expense of probate by transferring much of the estate outside of probate, which is often a desired outcome of people when they are making a Will or Trust and planning for the eventual distribution of their estate.
How much does probate cost, and who pays for it?
Legal fees for Probate depend on the size of the estate. If the estate is valued at one million dollars or less, the probate fee is 3% of the estate. As the value of the estate increases, the percentage of the estate going toward probate fees declines, and estates valued above ten million dollars are subject to fees equal to 1.5% of the estate’s value. Fees are presumed to be reasonable if they follow this schedule, and although larger fees could lawfully be charged, larger fees would have to be justified to the court based on the complexity of the estate or other factors that make probate require additional time, cost or expertise.
In addition to legal fees, probate can incur costs for required property appraisals, storing property before it can be distributed, readying a property for sale, keeping up insurance premiums, etc. The costs of probate are borne by the estate itself. These fees are deducted from the estate before it is distributed to the heirs and beneficiaries.
Does the entire estate have to go through probate?
Probate is the process used to distribute property that is titled solely in the decedent’s name. A formal court administration is therefore necessary to transfer title from the deceased to the persons or other entities named in the Will to receive the property. Title to property that is jointly owned or titled, contains a beneficiary designation, or where title has already been transferred, does not require probate. Non-probate assets can be transferred to the intended beneficiaries outside of probate immediately (by operation of law) and without incurring additional costs to the estate. Examples of non-probate assets can include:
- Property owned as joint tenants with a right of survivorship
- Life insurance policies that designate a beneficiary other than the estate
- Retirement accounts that designate a beneficiary other than the estate
- Joint bank accounts (?)
- Bank accounts with Payable on Death (POD) and Transfer on Death (TOD) provisions
- Assets placed in a revocable living trust
Some real property that is jointly titled might still need to go through probate, so if avoiding or minimizing probate is a goal, you should discuss property ownership with an estate planning attorney when creating or updating your Wills, Trusts and other estate planning documents.
Is it possible to avoid probate altogether?
Generally speaking, if all of your property is disposed of outside of probate through Trusts, jointly titled property, and documents with beneficiary designations, then probate can be largely or completely avoided. Also, Florida law provides a way to skip probate in certain circumstances, known as Disposition of Personal Property Without Administration. No formal probate proceedings are required if all of the following are true:
- The deceased is only leaving personal property and no real estate
- All of the property is exempt from creditors
- The value of any non-exempt property is less than the sum of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness
Disposition without administration occurs by submitting an informal application to the court describing that the above criteria apply. If found to be true, the court can authorize the disposition of personal property to heirs and beneficiaries without going through probate.
Florida law also provides a “summary administration” process that is an abbreviated form of probate. Summary administration is available if the value of the non-exempt property in the estate is $75,000 or less, all estate debts have been paid, and no creditors object to using the less formal summary process. Summary administration is also appropriate if the individual has been deceased for over two years without a probate estate being opened.
Contact SAMUELS WOOD PLLC Today
If you are a personal representative or executor needing help probating an estate, or if you are an heir or beneficiary with questions about receiving your inheritance, SAMUELS WOOD PLLC offers practical legal advice and technical assistance to get through probate smoothly and successfully. Call our experienced Boca Raton probate lawyers today.
