Many people have heard of probate but wonder exactly what Probate is. Probate is simply the court-supervised process for identifying and gathering a decedent’s assets, paying taxes, creditor claims and expenses, and distributing assets to the decedent’s beneficiaries. Unfortunately, there is nothing simple about probate. It is generally a time-consuming, needlessly expensive and frustrating process, one made all the more difficult by the grief that accompanies the loss of a loved one. At Allender & Allender, we have the experience to guide your heirs and loved ones through the probate maze efficiently and compassionately, as well as show you a number of ways to avoid probate entirely, such as the creation of a Living Trust.
Probate in Florida
In Florida, there are two types of probate administration: Formal Administration, which usually takes eight months to one year, but certainly can last longer; and Summary Administration, which usually takes four to eight months. Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration” for situations in which the decedent’s probate assets are less than $1,500.
Typically, assets subject to probate are those in the decedent’s individual name or otherwise owned solely by the decedent, and contain no provision for automatic succession to someone other than the decedent. When a person dies owning such probate assets, Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid Last Will & Testament, which must satisfy the formal requirements set forth by Florida law.
A Will usually designates a personal representative and names beneficiaries to receive probate assets. A Will can also do other things, including establish a trust and designate a trustee. However, it does not avoid probate. To the extent a Will properly devises probate assets and designates a personal representative, it controls the automatic provisions set forth under Florida law. In the absence of a valid Will, or if the Will fails in either respect, Florida law designates the beneficiaries and the way the personal representative is selected.
You may wonder who can serve as the personal representative. In Florida, a personal representative can be an individual who is either a resident of Florida or the spouse, sibling, parent, child, or certain other close relative of the decedent; a trust company that is incorporated under the laws of Florida; or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida.
There are many duties and responsibilities associated with being a personal representative. Choosing your personal representative is not a decision to be taken lightly, nor should the decision to accept the role of personal representative. In almost all instances under Florida law, the personal representative must be represented by a Florida attorney. The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. It is important to note that the attorney for the personal representative is not the attorney for the beneficiaries.