What is a Florida probate, and how does probate work in Florida?
Florida Probate is the process in which assets that were held in a decedent’s name alone are passed to his or her beneficiaries (if there is a will) or heirs at law (if there is no will.)
Through the probate process, the court ensures that creditors and taxes owed by the decedent are paid. Florida Probate are found in Florida Statutes which outline the probate process in Chapters 731 to 735.
When someone dies the first question is whether she left a will.
The original will is best, but probate is possible with a copy of the last will. It could be in a safe deposit box or a home safe. Other times the will may be left in the office of the attorney 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 she 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.
In order to take care of the decedent’s creditors (anyone she owed money), actual notice of the Florida probate is given to all 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 all 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 months from first publication of notice. (For known creditors, those given actual notice, the time limit to file a claim in the probate is 30 days.) Therefore during this time there is a waiting period in the probate attorney in Naples, FL. 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 particularly true in large, complex estates.
After the creditor’s claims period has expired, the Personal Representative can satisfy the properly filed claims.
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 Florida probate process.
These assets include jointly held assets, assets with beneficiary designations, assets with a pay on death designation and assets 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. If you have questions about your estate, please call Burzynski Elder Law at 239-434-8557 for a consultation.