The term “probate” refers to the court supervised process of identifying and gathering the assets of a deceased person. The purpose of this process is to ensure that the estate of the deceased person is administered in a legal and orderly manner, in order to pay any outstanding debts that the person may have had, and distribute assets to the descendants/beneficiaries. In general, during the probate process the state uses a portion of the decedent’s assets to cover the cost of the process, after this, the state uses the remaining assets to pay all outstanding debts. If any assets remain after all debts are paid, they are distributed among the heirs of the deceased person, as stipulated in the decedent’s will, or according to the inheritance laws in the state if there is no will. However, some of the key procedures followed during the probate processes differ from state to state.
There are two main types of probate administration under Florida probate law- formal and summary administration. In order to initiate the formal/court probate process in Florida, a family member/heir of the deceased person needs to file the necessary probate pleadings with the court. To file probate in Florida, you need to follow these steps:
• Submit the will of the deceased and the death certificate to the Clerk of Courts. You need to ensure that you submit the original will (not a photocopy).
• Determine the value of the probate estate- you need to calculate the value of the decedent’s estate before you file the appropriate probate pleadings with the court. If you do not know the market value of the probate estate properties, your attorney can help you determine the current value of different properties, and also let you know which of the decedent’s properties may be exempt from probate.
• Determine which probate administration process is most appropriate for you. There are different rules and procedures you need to follow/adhere to under the various probate administration processes. For instance, in order to use the summary/family administration process, the value of the deceased person should not have any debt and his/her estate must be below $75,000 (excluding the value of any real estate property). If the estate does not qualify for summary administration, you need to use the formal administration process. You need to hire a licensed probate attorney to represent you in the formal process unless you are the sole heir/beneficiary of the estate.
• Prepare and file probate pleadings with the appropriate court- under Florida law, you need to file probate in a court in the decedent’s county of residence. If the deceased had property in more than one county, you may have to file probate in more than one county. If you have a Florida. probate attorney, your attorney can prepare and file all the necessary probate documents for you. These documents include death certificate, oath of personal representative (The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate), Order admitting will to probate, Letter of administration, notice to creditors (sent to the decedents creditors by the personal representative)and tax documents.
Once you file probate, the probate process may last for three to six months depending on the facts of the situation. If your personal representative needs to sell some of the decedent’s real estate to settle some debts in the probate estate or has to deal with a lawsuit filed by decedent’s creditors, the probate process may last longer.
The smartest thing to do when involved in a Florida probate proceeding, is to find an experienced probate attorney. An attorney can speed up the process and help you avoid potentially costly mistakes.