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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, 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.

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 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.

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.

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 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.

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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