Work with a Florida and Palm Beach County Probate Lawyer
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. Probate is required in Florida for:
- Florida residents who pass away owning property titled in their individual names for which no beneficiary is named.
- 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 Florida 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.
Florida Probate Process
To navigate the complex Florida probate process we recommend you work with a Palm Beach County probate lawyer. The Florida probate process is complex, and in many cases, the assistance or supervision of an attorney is required.
Petition for Administration
In order to initiate probate, 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 or bank or trust company appointed by the court to carry out the probate administration.
Florida 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 the laws of Florida and are authorized and qualified to exercise fiduciary powers in Florida may serve as Personal Representative.
To be valid, Florida law requires that a Will be in writing, signed by the testator (or another person at the testator’s direction) and be 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.
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 Florida.
Probate seeks to settle a decedent’s affairs. Similarly, Florida 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 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. Florida law requires that the creditor file a Statement of Claim in the probate proceeding. 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.
Florida 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.
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 by 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.
In Florida, 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.
Alternatives to Probate: Small Estate Administration
The value of the estate subject to administration in Florida, 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.
Navigate the Florida Probate Process with a Palm Beach County Probate Lawyer
For more information about the Florida probate process or guidance on your particular situation, contact a Comiter, Singer, Baseman & Braun Palm Beach County probate lawyer either online or by calling us at 561-626-2101 or toll-free at 800-226-1484. We work with clients in Palm Beach County, including Boca Raton and Palm Beach Gardens, and throughout the state of Florida.