What is Probate?
The purpose of a probate case is to collection a decedent’s assets, to pay the decedent’s creditors, taxes, and administrative expenses from those assets, and then to distribute the remainder of the assets to the beneficiaries entitled to receive them. A Personal Representative is appointed by the court in a Formal Administration to pay the decedent’s creditors and taxes and to distribute the remainder of the estate assets according to the terms of the decedent’s will. If a person dies without a valid will, the Personal Representative then distributes the remainder of the estate assets in accordance with Florida’s intestacy statutes. A Personal Representative appointment by a Florida Court must take possession of all the deceased’s personal property no matter where it is located. The Florida Personal Representative also assumes the responsibility for administering the decedent’s real property in this state with the exception of the homestead.
Since the Florida courts have no jurisdiction over real property outside the boundaries of the state, the Florida Personal Representative does not have the authority to control the administration or management of real property in another state. Instead, the beneficiaries of that real property in another state must request that the court where the real property is located appoint a Personal Representative in that state. This is called an Ancillary Administration. A Personal Representative must make sure that all known or reasonable ascertainable creditors of the decedent are paid. The Personal Representative must send a Notice of Creditors to each known creditor and must publish a Notice to Creditors in the newspaper. Claims of creditors must be filed against the estate of the decedent in the probate proceeding within the later of three (3) months after the Notice to Creditors was first published or thirty (30) days after the Personal Representative notifies a known creditor. If creditors’ claims are not timely filed, payment of those claims may be barred.
A Personal Representative has the authority to represent the interests of all persons affected by the estate proceeding. Since a creditor of a decedent cannot make a claim against a person who owes the decedent money, it is the responsibility of the Personal Representative to take steps to collect the decedent’s assets, not just for the beneficiaries, but also for the decedent’s creditors. Probate often includes the filing a Petition to Determine Homestead, Petition to Determine Exempt Property, Petition for Family Allowance, and other various court documents. A Formal Administration can take four (4) to twelve (12) months, or more, depending on the complexity of the estate and the legal issues involved.
Since the probate process is so personable, it is important to be in communication with your attorney, or find an attorney who can confirm you are doing all of the steps correctly. If mistakes are made, it can cost a lot of money, time and effort to correct these errors.
““We contact the clients frequently to make sure that we are getting everything filed and everything required by the courts to make sure that their assets are being distributed as appropriate per law and the will.”
Alternatives to Formal Probate
There are times when the value of a deceased person’s estate does not warrant a formal probate administration. In some cases, the following options may be appropriate:
Summary Administration: A summary administration is allowed when the fair market value of the decedent’s property subject to probate administration, does not exceed $75,000, not including the value of the decedent’s homestead property, OR when a decedent has been dead for more than two (2) years. If a Petition for Summary Administration is filed with the clerk of the court by all the beneficiaries and the surviving spouse, the circuit judge may order the immediate distribution of this property to the beneficiaries named in the will. An Order of Summary Administration will not be granted by the circuit judge if the decedent has known creditors which the beneficiaries have not agreed to pay. An exception is when no creditor timely files a claim after receiving notice of the opportunity to file a claim and the three (3) month time period has passed since a Notice to Creditors was published. Another exception would be if the two (2) year Statute of Limitations for creditors to file claims has expired.
Disposition without Need of Administration: The Florida Statutes allow for the distributions of a decedent’s assets without any type of probate when the value of the decedent’s nonexempt assets does not exceed the preferred funeral expense of $6,000 and the reasonable and necessary medical and hospital expenses of the last sixty (60) days of the decedent’s last illness. A Petition for Disposition without Need of Administration is available at the office of the Clerk of Court in the county where the decedent resided without the need for an attorney. If the, after reviewing the Petition and the copies of the attached receipts for the paid funeral and medical expenses, the circuit judge is satisfied, the judge may authorize the payment of the proceeds of the bank accounts to the person who paid those priority expenses.
Automobile: If there is no need for a probate case, except for the disposition of the decedent’s automobile, the beneficiary named in the decedent’s Last Will and Testament can apply at the county Tax Collector’s office for the Florida Department of Motor Vehicles to issue a new certificate of title in the name of the beneficiary. In addition tp resenting the decedent’s motor vehicle certificate of title, a sworn copy of the Last Will and Testament and an original death certificate must be presented with an affidavit that the decedent is not indebted to anyone. If a person died without a Last Will and Testament, an heir of the decedent can apply to the Department of Motor Vehicles for a new certificate
of title with an affidavit that the estate of the decedent is not indebted and the surviving spouse and the heirs have amicable agreed to this title transfer.
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