Probate, the legal process of “proving” a will, satisfying creditor claims and distributing a deceased individual’s assets to his or her loved ones, can be a complex, arduous process. Because of this, many individuals make decisions during estate planning that enable their loved ones to largely or even completely sidestep the probate process by transferring their assets into a trust thereby receiving their assets more quickly and inexpensively. For many estates, though, probate is unavoidable.
Below are the three types of probate in Florida. The type of probate for which your estate will qualify depends on the circumstances affecting the estate.
Typically, the probate process follows specific rules that make it a drawn-out, complex process. This type of probate is known as formal probate. To begin the formal probate process, an “interested party,” somebody who believes he or she will receive assets from a deceased individual’s will, petitions the court to open a formal probate administration. To open a case, the interested party must provide sufficient identifying including:
- All pertinent information about him- or herself, including his or her interest in the estate and his or her probate attorney’s name;
- Information about the deceased individual, including the last four digits of his or her Social Security number and last known address;
- If the estate was required to file a federal Estate Tax form; and
- The approximate value of the estate.
Once the court accepts the petition it appoints a personal representative to oversee the probate process. A family member or friend is typically nominated in the Will to be the personal representative. Then a notice to creditors is publishing in the local business paper. This starts a 90 day creditors period during which creditors of the estate may come forward and make claims. Common claims include credit card balances and medical costs associated with the last illness. A more complicated scenario would be where there is outstanding or pending litigation involving the deceased. After the 90 day period expires no further claims are permitted and the personal representative satisfies the claims outstanding. At this point the personal representative produces an accounting of the estate’s assets, income and disbursements for the beneficiaries. Once the accounting is approved (or waived) the remaining assets are distributed to the beneficiaries and the estate is closed.
When an estate is valued at less than $75,000 or the decedent has been deceased for two years or longer, it is possible for the estate to go through a more streamlined probate process known as summary probate. Like formal probate, summary probate begins with a petition that includes pertinent information about the estate. However, no personal representative is appointed, and once the court determines that the estate qualifies for summary probate, it issues an order transferring the assets to their beneficiaries immediately. After the order of summary administration is issued the estate has the option to publish a notice to creditors which starts a 90 day creditors period during which creditors of the estate may come forward and make claims. Any creditor claims not made during that 90 day period are extinguished and the estate’s assets are freed from future claims.
This third type of probate is used when a resident of another state who has property in Florida, typically real estate, passes away and the legal title to such property needs to be re-titled, whether to an heir, devisee or third-party buyer. This is not an uncommon occurrence, since many people from around the country maintain vacation homes in Florida. The ancillary probate proceeding provides the necessary legal authority for the Florida property to be transferred when the primary probate proceedings are taking place in a different state. When it is used, the personal representative appointed in the primary proceedings is typically also appointed by a Florida court to act in the same capacity in Florida. The ancillary probate proceeding moves forward on a parallel track with the primary proceeding in the other state. The same procedures are followed as with a formal probate proceeding, described above.
Learn more about the probate process by discussing it with an experienced estate planning lawyer. To get started, contact The Law Office of Gregory W. Kabel, P.A. today to set up your free consultation with our firm. During your consultation, we will examine all the relevant facts about your case to advise you on what your loved ones can expect from the probate process and how you can make it easier on them when the time comes by moving certain assets into trusts and creating other arrangements.