5 Questions and Answers About Probate
My spouse/parent/sibling just passed away, what do I need to do? In the State of Florida, the court-supervised process to determine the deceased person’s assets, take care of their debts and make any distribution to beneficiaries is called “Probate.” Generally, if retirement accounts (such as IRAs or 401(k)s and life insurance policies list a beneficiary, they do not go through the Probate process. Property held in a living trust or funds in a payable-on-death (POD) bank account also transfer without the need of a Probate. Jointly owned assets (like a Deed that states ‘Joint Tenants with Rights of Survivorship’) also pass outside of Probate. However, if the deceased person owns property as ‘tenants in common,’ Probate will be necessary to follow the distribution according to the Will. If a person did not prepare a Will before their passing, their estate is called an Intestate Estate. In an Intestate Estate the distribution of property or assets through Probate is made according to Florida’s law of intestacy.
Does having a Will avoid Probate? In a Will, the deceased person selects a person known as the Executor or Personal Representative to handle their matters after they die. A Will also can include specific devises (the leaving of an item to someone) of miscellaneous assets, make special requests for handling of minors, animals and/or those with special needs.
What happens if there is no Will? If the deceased person did not have a Will, distribution of their assets is handled in accordance with the Florida Probate Code through the laws of intestate succession. Depending on the type of property, some may transfer without the need to Probate (see above). Otherwise, the Estate will have to be opened in Probate Court. The Estate is opened by the filing of a Petition for Administration by the Executor/Personal Representative.
What are the Personal Representative’s Responsibilities? The Executor/Personal Representative is responsible for collecting the assets of the Estate and preparing an inventory of the property. If a deceased person had debt(s), the Executor/Personal Representative is responsible for collecting money belonging to the Estate, resolving the debts/expenses and distributing the remaining assets according to the Will (or if Intestate, according to Florida Statutes). It is sometimes necessary for the Executor/Personal Representative to liquidate or sell assets to pay debts before distributing the remaining assets and closing the Estate.
How long does the Probate process last? The length of time a ‘Probate’ will take depends on the number of assets and debts in the Estate. Also, the time can vary based on whether there is a Will, whether the beneficiaries can be easily located and whether there will be any dispute as to the validity of the Will or disagreements about the distributions. In the State of Florida, there are Three (3) Types of Administrations (Disposition without Administration, Summary Administration and Full Administration). The type of administration depends on the size/value of the Estate, whether the deceased person had any debts and how long it has been since the person passed away.
If you have questions regarding Probate or would like to prepare a Will, please contact our office.