Florida Probate

When someone dies, the property that they leave is their estate. Before others can gain lawful ownership of the property in their loved one’s estate, the estate must first go through estate administration under the supervision of the Circuit Court and a court appointed administrator. In Florida, the Circuit Court serves as the probate court and handles matters related to probate and administration of estates of decedents. While it is inevitable that the process will be emotional and stressful for the family, understanding what to expect will make the process a little easier.

Depositing of Decedent’s Will and Estate Administration

Estate administration is the legal process during which the personal representative, who is the court-appointed administrator, performs the activities required to manage the estate and distribute its assets. According to § 732.901 of Florida’s Probate Code, within 10 days of death the decedent’s original will must be deposited the Clerk of the Circuit Court in county in which the decedent lived at the time of their death. The decedent’s death certificate must also be filed. The court will review the will to determine its validity. If the court finds that the will is valid, it will admit the will to probate.

One of the first duties and responsibilities of the personal representative is to identify the estate’s probate property. Other assets such proceeds from life insurance, assets in a living trust, and assets that have designated beneficiaries are not subject to probate and are transferred to the appropriate beneficiaries outside of the court-supervised administration process. Once the assets have been identified, they must be secured and appraised. A determination of the estate’s value must be made in order to understand what is available to pay estate debts.

One of the goals of administration is to ensure the payment of creditors. In fact, paying debt takes a priority over asset distribution to beneficiaries and heirs. Creditors must be notified that the decedent’s estate has been opened. Creditors are given a deadline to file claims and valid claims that were submitted on time must be paid. Unsubstantiated claims will be denied.

One of the last steps in the process is the distribution of property. The personal representative distributes to beneficiaries and heirs the assets that are left in the estate after debts and expenses are paid. All the activities during administration including inventorying the estate, paying debts, and distributing assets must be reported to the court in the form of an accounting.

The administration process typically takes 5-6 months. However, complications can extend it.

Probate Litigation

Probate can go wrong. Disputes happen. When probate disputes cannot be settled between the parties outside of court, they lead to litigation that must be decided by a judge. Probate litigation causes delays and added expense.

A common issue that leads to probate litigation are challenges to the validity of the will. Will contests typically occur because a beneficiary of a prior will or an intestate heir believes that the will submitted for probate is not valid. Grounds for contesting a will include fraud, undue influence, improper execution, or invalidity because of the existence of a later will.

Other issues that can result in probate litigation include problems related to the personal administrator. Relatives my challenge the appointment on the grounds that the person does not meet the legal requirements to serve or because they have a greater right to serve as the personal representative. Beneficiaries may question the manner in which the personal representative managed the estate and initiate probate litigation based on a claim of a breach of fiduciary duty. Similarly, disagreements about the estate accounting can also lead to litigation.

Intestate Succession

Regardless of whether a decedent left a will or not, every estate that has probate property must go through probate. However, in the absence of a will there are special rules that apply. Many believe that in the absence of a will, the relatives get to figure out who gets what. That is not the case. When someone dies without a will, the legal term is that they died “intestate.” Under Florida’s intestate succession laws, Fla. Stat. § 732, the decedent’s assets will be distributed according to a predetermined order regardless of whether that is what the decedent would have wanted. If the decedent has a surviving spouse and children, they would be the primary heirs and would be entitled to the entire estate. Otherwise the estate would go to other blood relatives based on the statute’s predetermined order of priority.

Dying intestate can lead to disputes as multiple relatives may feel entitled to estate property. Where it is not clear who is entitled to inherit, a kinship hearing may be required to determine degree of consanguinity and the right to inherit.

Small Estate Administration

While all estates must go through an administration process, small estates may be exempt from the traditional, detailed probate process. Summary administration involves the personal representative filing a petition stating that the estate qualifies for summary administration. Once the court approves the petition, the assets can be distributed.

To qualify, one of these factors must be present:

• There is no real property, and the personal property is exempt from creditor’s claims.
• The value of the property is exempt from creditor’s claims is less than $75,000 or the decedent has been dead for at least 2 years.