What is probate?
Probate is the process of identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his/ her beneficiaries or heirs.
In Florida, there are two types of court-supervised probate proceedings: Formal Administration and Summary Administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property without Administration,” which applies in limited circumstances (very small estates.)
Is Probate still necessary if there is a Will?
Probate Administration is necessary whether or not the decedent died with a Last Will and Testament (testate) or without a Last Will and Testament (intestate), if the decedent died holding an interest in probate assets. Probate Administration only applies to probate assets.
What Are Probate Assets?
Probate assets are those assets that the decedent died holding an interest in his or her sole name, or that were owned by the decedent and one or more co-owners and lacked instructions for automatic succession of ownership at death.
- A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another or held jointly with rights of survivorship with another, is not a probate asset.
- A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
- Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset, but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
- Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
Do I need an Attorney?
A probate attorney is required under Florida Law, except in very limited circumstances. Even in those limited circumstances, it may be difficult to navigate the process without the assistance of an attorney unless one is familiar with the applicable laws, rules, and documents that must be filed with the court in a timely manner.
What is the Role of the Personal Representative?
The Personal Representative is a fiduciary responsibility. The Personal Representative has an obligation to gather all assets, pay all taxes and other debts to the extent assets are available to satisfy the debts and distribute the remaining assets to the beneficiaries and heirs of the estate. There are many additional steps involved in this process, which include notice to creditors, beneficiaries and other interested parties, which must all be done in a timely manner.
What is the Role of the Attorney for the Personal Representative?
The attorney for the Personal Representative advises the Personal Representative on their rights and duties under the law, prepares and files the necessary documents with the court beginning with the petitions to admit the Will (if there is a Will), to have the Personal Representative appointed by the court, and have Letters of Administration issued by the court, and represents the Personal Representative throughout the probate proceeding until all matters are concluded. The attorney for the Personal Representative only represents the Personal Representative and does not represent the beneficiaries of the estate.
What are Letters of Administration?
(a.k.a. ‘Letters Testamentary’ or ‘Letters of Authority’)
The formal document of authority and appointment issued by the court appointing the Personal Representative.
Does the Personal Representative Need to Personally Appear in Florida to Probate an Estate?
No. All matters can be handled by email, mail, fax, and phone. However, if there is a dispute, a hearing requiring the Personal Representative’s presence or that of the attorney may be necessary.
What is the proper place to file a Probate?
Typically, the county courthouse in the county the decedent resided or owned property is where Probate will be filed. For example, if the decedent resided in Charlotte County, Florida and owned real property in Charlotte County, Florida, the probate must be filed in Charlotte County, Florida. If the decedent was a resident of the state of Michigan and owned real property in Charlotte County, Florida, a probate for the real property located in Charlotte County must be filed in Charlotte County (see below regarding Ancillary Administration).
What is an Ancillary Administration?
Ancillary Administration is usually necessary when the decedent dies owning property located in a state but was not a resident of that state and a domiciliary probate has been commenced in the home state. For example, a resident of Michigan dies owning a vacation home in Florida.
The Law Firm of Arlene C. Chase, P.A. welcomes the opportunity to be of assistance during this difficult time. We demystify the probate process for you by providing guidance and keeping you informed every step of the way. We are always available to answer your questions. Contact us at (941) 575-5142 if you have any questions or to schedule an appointment.