What is a probate proceeding and how does it work in Florida?
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A probate proceeding is the process whereby assets that were held in a decedent’s name alone are passed to his or her beneficiaries (if there is a will) or heirs (if there is not a will).
Through the probate proceeding, the court ensures that creditors and taxes owed by the decedent are paid. Florida Statutes outline the probate process in Chapters 731 to 735.
When someone dies the first question is whether he left a will.
The original will is best, but probate is possible with a copy of the last will if evidence can be provided that it was not intentionally destroyed. It could be in a safe deposit box or a home safe. Other times the will may be left in the office of the probate attorney in Naples, FL who prepared it. The will gets filed with the Probate Division of the Clerk of Court’s office in the county where the decedent lived, or the county where he owned real property.
The will nominates a person to serve as Personal Representative. (This position is known in other states as Executor.) After the will is filed, the Personal Representative files a petition with the court to open the probate. The Personal Representative is issued Letters of Administration which bestow the power to act on behalf of the estate. With the Letters, the Personal Representative can access bank accounts to pay bills, arrange for sale of assets such as real property, and eventually to settle creditor’s claims.
Part of the probate proceeding process is to take care of the decedent’s creditors (anyone he owed money), actual notice of the probate is given to known creditors.
A notification is sent by certified mail to each creditor the personal representative knows about. Since the personal representative may not know about some creditors, notice is published in a newspaper announcing the name of the decedent and giving information to allow the filing of a claim in the probate. Creditors have a period of time to file their claims with the Probate Court. In Florida, this period of time is 3 month from first publication of notice. The Personal Representative must provide actual notice to known creditors. Therefore during this time there is a waiting period in the probate process. Anyone who does not file a claim in the time allotted is thereafter barred from payment. The ability to cut off liability for future payments is a benefit of the probate process. This is especially true in large, complex estates.
After the creditor’s claims period has expired, the Personal Representative can satisfy the properly filed claims as a part of the probate proceeding.
If there is not enough liquidity in the estate, the Personal Representative may arrange to sell off assets with court approval. If there is still not enough to satisfy all creditors, there is a priority of claims outlined in Chapter 733 Section 805. Each category is satisfied in full before looking to the next level of priority. When you get to a level that cannot be fully paid, that level is paid pro-rata based on the amount of their claims.
After paying the creditors, the remaining assets are distributed in the manner named in the will. The decedent’s intent is important in determining how the assets are distributed.
Assets that are not held in a decedent’s name alone are not subject to the probate process.
These assets include jointly held assets, assets with beneficiary designations, assets with a pay on death designation and assets held in trust.
Decisions about how assets are titled are often made without regard to the big estate planning picture. Periodically reviewing how assets are titled is essential in ensuring that your wishes are still reflected in your plan.