Probate is the legal process that takes place after a person dies in order to settle such person’s affairs and distribute such person’s property. The probate process is complex, can turn into a litigious matter, and in many cases, the assistance or supervision of a skilled probate attorney is required. Probate is necessary for state residents who pass away owning property titled in their individual names for which no beneficiary is named and nonresidents who pass away owning real or tangible personal property in Florida in their individual names.
If the decedent has a Will, the probate is referred to as testate, and the decedent’s property is distributed pursuant to the terms of the Will (except to the extent that the surviving spouse or children may be granted rights under state law). If the decedent does not have a Will, the probate is referred to as intestate, and the decedent’s property is distributed pursuant to rules set forth under the Florida Probate Code. Below are the various stages of the complex probate process. To navigate it best, we recommend you work with our knowledgeable attorneys for help with the probate process in Palm Beach County.
What Is a Petition for Administration?
To initiate the probate process in Palm Beach County, a Petition for Administration must be filed, which requests admission of the decedent’s Will, if there is a Will, and the appointment of a Personal Representative (in other states, this person is sometimes referred to as an Executor, if there is a Will, or as an Administrator, if there is no Will). The Personal Representative is the person, bank, or trust company appointed by the court to carry out the probate administration.
State law limits who may serve as a Personal Representative. Only a person related to the decedent or a person who is a Florida resident may serve. Further, no person who has been convicted of a felony or is not at least 18 years of age may serve as Personal Representative. All banks or trust companies incorporated under state laws that are authorized and qualified to exercise fiduciary powers may serve as Personal Representative. To be valid, state law requires that a Will be in writing, signed by the testator (or another person at the testator’s direction), and signed in the presence of two witnesses. The witnesses must sign in the presence of the testator and each other.
The Personal Representative’s appointment is evidenced by the court’s issuance of Letters of Administration. Certain courts will limit the powers of a Personal Representative and will set forth these restrictions within the Letters of Administration. Some courts also require that the person appointed as Personal Representative post a bond (insurance policy) to protect the beneficiaries or require that all liquid assets be deposited in a “restricted account,” where no checks may be written or assets transferred without a court order.
Ancillary Administration
If the decedent was not a resident of Florida, the Petition for Administration will include copies of documents filed to initiate administration in the state of the decedent’s residence. Further, the Personal Representative will only have authority to deal with real or tangible personal property located in the state.
Creditors
Probate seeks to settle a decedent’s affairs. Similarly, state law seeks finality and, as a result, imposes time limits on creditors. The Personal Representative is required to publish a Notice to Creditors and serve (send) a copy of the Notice to Creditors to all known or reasonably ascertainable creditors. A creditor has three months from the first publication of the Notice to Creditors, or if later, one month from service of the Notice to Creditors, in which to file a claim.
It is not enough to mail an invoice to the Personal Representative. State law requires that the creditor file a Statement of Claim in the probate proceeding in Palm Beach County. Further, Florida law imposes an absolute requirement that under all circumstances, the Statement of Claim must be filed within two years of the decedent’s death, even if probate is not commenced until two years after death or a Notice to Creditors is not sent to a known creditor. State law sets forth a procedure for the Personal Representative (or other interested person) to object to a Statement of Claim and for the creditor to respond to such objection.
Close Creditor Period and Pay Valid Debts
Three months after the deceased’s creditors were notified, the Personal Representative will begin closing the estate by paying all valid debts to creditors. Any creditor claims received after this point are invalid and can be successfully challenged. Debts must be paid by using liquid assets from the deceased person’s estate. If there is no liquidity, the Personal Representative must sell enough estate property to generate the cash required to satisfy creditors’ claims.
Filing an Inventory of the Decedent's Assets
At this stage in the Palm Beach County probate process, the Personal Representative is required to file an Inventory of the decedent’s assets (other than those assets held in trust or in joint names or for which a beneficiary is named) within 60 days of issuance of the Letters of Administration. This deadline may be, and frequently is, extended. A copy of the Inventory must be sent to each residuary beneficiary in a testate estate and each heir at law in an intestate estate. Although the Inventory is a private document and is not accessible to the general public, a creditor may also request a copy. Generally, the Personal Representative is not required to obtain court orders before proceeding with the discharge of the Personal Representative’s duties.
Final Estate Accounting and Distributing Assets
We can assume that Personal Representatives have been recording every fiduciary action they have taken. These records may need to be organized and consolidated, but should include the Palm Beach County estate’s assets, any distributions made to creditors, probate fees, attorney’s fees, as well as the personal representative’s allowable fee.
Finally, the people named in the deceased’s will can receive their inheritances in accordance with the deceased’s instructions. A plan for how this distribution will ultimately take place must be agreed upon by all applicable parties.
Closing Probate
In Palm Beach County and across the state, the Personal Representative is required to close the probate administration with the court. Thus, as the final step, once administration is complete, the Personal Representative is required to file and serve on the residuary beneficiaries a Final Accounting showing all receipts, disbursements, and transactions, and a Petition for Discharge. The beneficiaries may waive the filing of a Final Accounting.
Our Lawyers Offer Alternatives to Probate: Small Estate Administration
The value of the estate subject to administration, less the value of property exempt from the claims of creditors, equals the final value of the estate. The Florida Probate Code authorizes the use of a short form of administration for small estates that do not exceed $75,000 or for estates where the decedent has been dead for more than two years. This type of administration is known as a summary administration.
A Petition for Administration seeks the admission of the Will to probate and the distribution of assets subject to the terms of the Will or the laws of intestacy. No Personal Representative is appointed. Instead, an Order of Summary Administration is entered, which specifically sets forth how assets are to be distributed. This Order can then be presented to banks and transfer agents or recorded in the real estate records to evidence the transfer of real estate. If you want to consider an alternative to the probate process, reach out to our Palm Beach County attorneys for help exploring this option.
Get Help Navigating the Probate Process in Palm Beach County with Comiter Singer
For more information about the probate process in Palm Beach County or guidance on your particular situation, contact Comiter Singer either through our online contact form or by calling us at 561-626-2101 or toll-free at 800-226-1484. We work with clients in Palm Beach County and throughout the state of Florida.