Sarasota Probate Attorney
Reliable Counsel for Probate Matters
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, it will need to be admitted to probate in the court and will then be used 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.
What are Probate Assets?
Probate only applies to the assets that are owned by the decedent prior to death that does not have some other mechanism that automatically transfers the asset to a co-owner or beneficiary.
For example:
- 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 survivor-ship 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.
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 name 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."
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What is Probate?
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 descendant, and whatever assets remain will be distributed to the beneficiaries. Probate is also necessary to identify the Personal Representative or “Executor” who will then be responsible to wind up the decedent’s financial affairs after his or her death.
The Probate Process in a Nutshell
The probate process typically goes as follows:
- File the original will with the court
- Prepare and file the petition for administration
- The judge signs and issues the “Letters of Administration”
- The Personal Representative’s attorney will send copies to parties that would be involved or interested in the estate.
- By certified mail, the beneficiaries will be sent copies of a Notice of Administration (that is if they have not already filed a waiver of their right to receive notices of the probate process.)
One of the main objectives of Probate is to pay the decedent's debts with the assets of their estate. The most common of the types of creditors in Probate are the decedent’s funeral expenses, final hospital bill, mortgage company, credit card companies, and any miscellaneous debts. A Notice to Creditors must be sent to any party that the Personal Representative knows about – or someone called a “reasonably ascertainable creditor”. Any unknown creditors are provided notice of the administration of the estate through the publication of legal notice in the newspaper.
Upon receiving notice from the Personal Representative or within three months of the first publication of the notice of administration in the newspaper, any creditor seeking payment from the estate is required to file a claim in the Probate proceeding. The court will send the Personal Representative’s attorney a copy of all claims filed so that the claim can be paid or contested if determined to be invalid. Any claims not filed during this time period will be, in most cases, barred and do not need to be paid by the Personal Representative.
The Personal Representative must also identify and secure the assets of the decedent. A list of all assets in the Probate estate, also known as the Inventory, is filed with the court. These assets must also be valued in the Inventory, often requiring the hiring of an appraiser or other valuation experts.
The Personal Representative will also be responsible for filing tax returns for the estate. Personal representatives will have to arrange for the filing of an income tax return for the decedent for the year of the decedents' death and for subsequent years if the estate earns income on the estate assets. Larger estates will also require the filing of an estate tax return.
The Personal Representative also has the duty to manage estate assets until they are sold or distributed to beneficiaries which often requires the payment of ongoing mortgage payments, utilities, and other expenses of property owned by the decedent.
Once all of the assets are gathered and the claims of all creditors filed, the Personal Representative can begin the process of liquidating the estate. First, all costs of the Probate proceeding and the administration of the estate are satisfied, including payment to the Personal Representative, the Personal Representative’s attorney and any experts hired by the Personal Representative. Then, all claims are paid from non-exempt assets. Thereafter, the remaining assets are distributed to the beneficiaries named in the will.
After all creditors’ claims are paid and assets distributed to the beneficiaries, the Personal Representative will file a Formal Accounting and seek an order of the Court that closes the Probate proceeding to discharge the Personal Representative and release him or her from any further duties.
It will take at least 3 months to probate a decedent’s estate but it is reasonable to expect that the administration of an estate will take approximately 6 months or longer if assets must be sold or there are challenges to the validity of a creditor’s claim or to the will itself. If you have been named as the Personal Representative of an Estate, The Edwards Law Firm, PL is here to represent you to timely and efficiently administer the estate.
How Do I Start Probate?
If you have recently lost a loved one and have been named in the Will as the Personal Representative, you will be responsible for settling the affairs of the decedent through probate. Most people in this position have no idea what this means or how or when to start the process.
To start the probate process, the personal representative should:
- Locate the original will
- Obtain a death certificate
- Gather bank statements and evidence of all assets owned by the decedent
- Gather all invoices and statements for all debts of the decedent
- Gather contact information for all potential heirs including those named in the will and those related to the decedent by blood or marriage (spouse, children, grandchildren, etc.)
- 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.
- Hire an attorney to assist in the Probate process
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 a 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.
Although there is no deadline to file a Probate after the decedent has passed, the Personal Representative has a fiduciary responsibility to both the creditors of the decedent and the beneficiaries of the estate. Failure to begin the Probate process in a timely fashion may be seen as a breach of fiduciary if the value of assets of the decedent’s estate is diminished due to delay or if any of the decedent’s creditors take action against the assets of the estate that could have been avoided by prompt action.
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.
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.
What Is the Personal Representative Entitled To?
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Why Choose The Edwards Law Firm, PL
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Over 30 Years of Experience
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Sheryl A. Edwards is a Board Certified Specialist in Real Estate Law
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Achieve Client Objectives in a Timely Manner
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Selected for Super Lawyers 12 Times
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Personalized Attention & Case Strategy
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Your Goals Always Come First
