What is probate?
Probate literally means “to prove”. The probate process is the process for proving the validity of the will and marshalling the assets which must pass through the will to heirs and or devisees.
Probate generally involves the following steps:
- Filing Petition with appropriate court for probate
- Sending notice to heirs and beneficiaries
- Petition to Appoint Personal Representative
- Filing of the Inventory and Appraisal
- Sale of Estate assets, if necessary
- Payment of estate taxes, if necessary
- Final distribution of estate assets to heirs and devisees
What are the primary types of probate in Florida?
The two primary types of probate proceedings in Florida are known as summary and formal administration. The nature and value of assets will determine which type of probate which is required.
How long does probate take?
The most typical type of probate in Florida is called “formal administration”. The basic formal administration process takes an average of eight to fifteen months to complete. The basic summary administration usually involves an average of five to eight months.
What are the attorney fees for probate?
For a simple summary administration, usually a flat fee will be charged. The costs of a formal administration is often a percentage of probatable assets. The fees will also vary depending on the size of the estate as well as the location, nature and complexity of the estate assets. Also, attorney fees can increase if there are disputes between heirs, creditor disputes, or any challenges to the will itself by third parties.
In addition to attorney’s fees there are court filing fees and costs. The current court filing fees and costs for filing either summary or formal administration can be found:
Hillsborough County and Pinellas County.
Does having a will mean there will be no probate?
No, a will just ensures that your property will be distributed to the persons whom you choose and makes provisions for the care of your minor children by stating the names of guardians of your minor children’s’ person and property. All assets that are in your sole name or assets in which you own as “tenants in common” with other individuals or entities will need to be “probated”.
Does all property need to go through a probate?
No, certain types of property is considered non- probate property. Some of the most common types of non probatable property include the following:
- Retirement accounts, such as a 401K and IRA that have an individual(s) named as beneficiary
- Bank Accounts that have a “POD”, payable on death designation
- Property owned by a trust
- Real Property titled as joint tenants or titled tenants by the entireties, i.e. as husband and wife
- Life Insurance that has an individual(s) named as beneficiary
Are there situations where no probate is necessary?
Yes, no final probate is needed if assets consist of only exempt personal property, property exempt from creditor claims under the Florida Constitution and/or non-exempt personal property, the value of which is less or the same as the funeral expense, medical bills and hospital bills incurred in the last 60 days of the decedent’s illness.
In these situations, an informal application by affidavit or letter by an interested party may be filed with the clerk’s office in the county in which the decedent resided prior to his/her death. An attorney is not necessary, but you must present a copy of the death certificate.
The forms require the following information:
- Detailed list of assets
- Estimation of value of each asset
- Shares of asset transferred
- Names and addresses of all parties to receive assets
- Statement that creditors, funeral bills, plus medical and hospital bills incurred during the last sixty days of decedent’s life were paid or that the decedent died more than two years earlier.
Upon receipt of the application, review and approval, the court will issue an order directly to the holder of the asset authorizing the payment, transfer or disposition to the persons or estates entitled to the asset.