Probate and estate administration can be a daunting and overwhelming task, especially while grieving the loss of a loved one. Probate is the court process of settling and distributing an estate. Estate administration is the process of handling the details to close an estate. It includes locating, notifying, and paying creditors, filing estate taxes, and distributing the remainder of the decedent’s assets to the beneficiaries. Many difficulties and delays can arise when administering a decedent’s probate estate.
A Florida circuit court judge supervises probate. It is a mandatory legal process for those that have died with or without a will. If a decedent had executed a will, the role of the court is to determine its validity. Once approved by the court, the named executor of the will has the authority to manage the estate’s financial affairs to fulfill the decedent’s wishes.
When a person dies without a will, they are said to have died intestate. In that case, the court appoints a qualified personal representative to administer the estate. However, the estate is controlled by the Florida Intestacy Statutes. The assets, debts, and distribution are handled according to state law and at a circuit court judge’s discretion.
Probate and Non-Probate Assets
Probate assets are items owned by the decedent. Examples are bank accounts, life insurance policies, real estate, personal property, furniture, motor vehicles, jewelry, shares in a business, copyrights, and patents.
Non-probate assets transfer directly to beneficiaries without going through probate. Examples are trust assets, joint tenancy, bank accounts owned by more than one person, payable upon death bank accounts, and retirement accounts.
Types of Probate and Estate Administration
The two main methods of probate and estate administration in Florida are Formal Administration and Summary Administration. In a Formal Administration, a judge appoints a personal representative. If there is a valid will in place, the person the deceased named in the will to act on their behalf is the personal representative. This person is to secure information about the decedent’s assets and debts, pay bills, file tax returns, and distribute the remainder of the assets to the beneficiaries. This type of probate is a lengthy process due to liquidating the real estate and personal property, negotiating with creditors, locating heirs, and other duties.
In a Summary Administration, a personal representative is not appointed by the court. It is an option if the value of a decedent’s assets is $75,000 or less or the decedent died more than two years ago. While this is less costly and can expedite closing an estate, it can be a more complicated process. Without the court’s appointment of a personal representative, the person or persons handling the estate can have difficulty securing an inventory, managing, or disposing of the decedent’s assets and debts.
A third type of probate is Disposition without Administration. It is appropriate only when the final expenses such as funeral costs and medical bills are higher than the amount of the estate. In these cases, the deceased person cannot have owned any real estate.
Do I Need an Attorney?
In most cases, Florida law requires the assistance of an attorney to settle an estate. Probate documents are complex and must meet specific criteria. There are complex situations such as minor children being named as heirs or the whereabouts of beneficiaries. In addition, disputes may arise regarding the validity of a will. Examples are challenging the testator’s capacity to sign the will, undue influence, improper will execution, or ambiguous wording in the document.
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