What is Probate?
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Probate is necessary to pass ownership of the decedent’s probate
assets to the decedent’s beneficiaries. If the decedent left a valid
will, unless the will is admitted to probate in the court, it will be
ineffective to pass ownership of probate assets to the decedent’s
beneficiaries. If the decedent had no will, probate is necessary to pass
ownership of the decedent’s probate assets to those persons who
are to receive them under Florida law.
Probate is a court-supervised procedure that accomplishes the following items:
- Ascertains and collects the assets of the decedent,
- Pays the decedent’s debts, and
- Distributes the assets to his or her designated beneficiaries.
Generally, the decedent’s assets will be used to pay for the probate
proceedings, then used to address the debt of the descendent, and whatever
remains will be dispersed to the beneficiaries.
Probate is also necessary to wind up the decedent’s financial affairs
after his or her death. Administration of the decedent’s estate
ensures that the decedent’s creditors are paid if certain procedures
are correctly followed.
What are Probate Assets?
Probate only applies to the assets that are owned by the decedent prior
to death that do not have some other mechanism that automatically transfers
the asset to a co-owner or beneficiary.
Bank or Investment Accounts: If the account is solely in the name of the decedent and there isn’t
a beneficiary already named in the Bank records or a “POD designation”,
then that account could be considered a probate asset. On the other hand,
if the account is jointly held, it cannot be considered a probate asset.
Life Insurance Policy, Annuity or IRA: If these are payable to a specific beneficiary they are not considered
probate. Alternatively, if these assets are payable to the decedent’s
estate, they are considered probate assets.
Real Estate Titles: With the exception of homestead property, if a title is solely in the decedent’s
name or in the name of the decedent and another tenant in common, then
it is considered a probate asset. However, a real estate title that is
held by both the decedent and one or more joint tenants who have survivorship
rights, is not considered a probate asset.
Marital Assets: Property owned between a husband and wife are not considered probate assets
as the entirety of one’s assets automatically goes to the surviving spouse.
Living Trust or Revocable Trust: Property owned by a living trust or revocable trust will pass to the successor
trustee without having to go through probate.
What is a Personal Representative?
The Personal Representative is the person in charge of the administration
of the decedent’s probate estate. If the decedent died with a will,
usually the will names the person to act as the Personal Representative.
In Florida, the term "Personal Representative" is used instead
of such terms as "executor, executrix, administrator and administratrix."
A Personal Representative has a legal duty to administer the probate estate
pursuant to Florida law. The personal representative must:
- Identify, gather, value, and safeguard the decedent’s probate assets.
- Publish a "Notice to Creditors" in a local newspaper in order
to give notice to potential claimants to file claims in the manner required by law.
- Serve a "Notice of Administration" to provide information about
the probate estate administration and notice of the procedures required
to be followed by those having any objection to the administration of
the decedent’s probate estate.
- Conduct a diligent search to locate "known or reasonably ascertainable"
creditors, and notify these creditors of the time by which their claims
must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate;
for example, attorneys, certified public accountants, appraisers and investment advisors.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
If the decedent had a valid will, the judge will appoint the person or
institution named by the decedent in his or her will to serve as Personal
Representative, as long as the named person is legally qualified to serve.
A person is not qualified to act as a Personal Representative (even if
named in the will as Personal Representative) if the person:
- Has been convicted of a felony.
- Is mentally or physically unable to perform the duties.
- Is under the age of 18 years.
If the decedent did not have a valid will, the surviving spouse has the
first right to be appointed by the judge to serve as Personal Representative.
If the decedent was not married at his or her death, or if the decedent’s
surviving spouse declines to serve, the person or institution selected
by a majority in interest of the decedent’s heirs will have the
second right to be appointed as Personal Representative. If the heirs
cannot agree among themselves, the judge will appoint a Personal Representative
after a hearing is held for that purpose.
A person who is not a resident of the State of Florida cannot qualify as
personal representative unless the person is:
- A legally adopted child or adoptive parent of the decedent;
- Related by lineal consanguinity to the decedent;
- A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent,
or someone related by lineal consanguinity to any such person;
- Or the spouse of a person otherwise qualified under this section.
How is the Personal Representative compensated?
The Personal Representative is entitled by law to reasonable compensation
by statute. Section 733.617 provides for compensation to the Personal
Representative of 3% for most estates and can be more or less depending
on the circumstances of the case.
Does the Personal Representative need an attorney?
The probate court will require that a Personal Representative hire an attorney
to assist in the administration of the decedent’s probate estate.
Many legal issues arise, even in the simplest probate estate administration,
and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the Personal Representative assists and advises the Personal
Representative in each step of the probate process and represents the
Personal Representative in probate estate proceedings.
The personal representative may choose to engage any attorney and is not
bound to hire a particular attorney or firm if set forth in the Will.
The attorney for the Personal Representative is entitled by law to reasonable
compensation by statute. Section 733.6171 provides for reasonable compensation
to the attorney for the Personal Representative starting at $1,500.00
for small estates and for 3% of the estate for estates under $1,000,000
with extraordinary services requiring additional compensation.
Our probate attorneys would be honored to apply our expertise to your circumstances
and guide you toward a favorable resolution. Schedule your
consultation in Sarasota, FL today!
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