It can be emotionally difficult, stressful, and confusing for a person’s family and friends when he or she passes away. One of the questions that must be addressed is what happens to that person’s property and debts upon his or her death. FindLaw has created this article to help you understand the basics of estate procedures in Florida.
Probate an Estate
When a person passes away (the law calls them “the decedent”), his or her property will go to individuals or entities called beneficiaries.
Any assets co-owned by the decedent and another person or persons generally go automatically to the other owners and do not require the opening of an estate. Assets such as life insurance benefits, IRAs, annuities, and pensions that have designated beneficiaries should go directly to the identified beneficiaries, and also do not require the opening of an estate under Florida law.
When the decedent owns property in his or her name alone, it is necessary to "probate" the estate. Probate is a process, overseen by the court, which identifies the decedent’s assets, pays necessary taxes and debts, and distributes property to beneficiaries.
It may be possible to probate an estate using Summary Administration under the following circumstances:
The Summary Administration process involves filing a petition with the court that requests distribution of assets according to the decedent’s will or Florida law. It is generally a faster, simpler, and less costly type of estate administration. Summary Administration is not available in all circumstances, however, including when a decedent has debts that have not been resolved.
If an estate is not eligible for Summary Administration, it is usually necessary to open a Formal Administration. The Formal Administration of an estate transfers the decedent’s assets to designated beneficiaries of the estate after payment of any creditor claims and administration costs. Administration of an estate can either be Testate (when there is a Last Will and Testament) or Intestate (when there is no Last Will and Testament). The Formal Administration process begins by filing a Petition for Administration with the court and requesting the appointment of a Personal Representative. A Personal Representative has a variety of tasks related to administering the estate, such as collecting assets, filing paperwork, and paying debts.
Notice of Administration and Claim Period
Once the estate has been opened and a Personal Representative has been appointed, it is necessary to publish a Notice of Administration. The Notice alerts potential creditors of the administration of the estate. At that point, creditors have three months to file a claim against the estate.
After that, any claims that have been filed with the Clerk of the Circuit Court are sent to the Personal Representative for review, who either pays the claims or files an objection.
During the three-month claims period, the Personal Representative may handle tasks such as:
The Personal Representative may begin to close the estate after the three-month claims period ends and the claims have been paid. This process involves preparing a Final Accounting and Petition for Discharge, and giving notice to beneficiaries. If there are no objections to the Final Accounting, Petition for Discharge, or the proposed plan of distribution filed with the court, then the estate may make distributions according to the plan.
This whole process, including any potential IRS tax return, may take as long as two years to complete. If a tax return won't be filed, Formal Administration typically takes between six months to one year to complete.
Legal Fees and Costs
Legal fees for a Formal Estate Administration must be reasonable but are typically three percent of the probate assets. For example, if probate assets are $100,000, legal fees would be $3,000. Additional legal fees may be billed for extraordinary legal services. Examples of extraordinary services may include litigation for will challenges, tax audits, tax return preparation, sale of real estate, or determination of beneficiaries. A Personal Representative is also entitled to a fee of three percent of the probate assets.
Contact a Probate Attorney
This article is a brief overview of Florida estate procedures, designed to give you a better idea of the process of estate administration. The above information is intended only as a guide and you may consider discussing the particular facts of your case with a probate and estate administration attorney.
Contact a qualified attorney.