What is Probate in Florida?
Probate is the judicial procedure through which a testamentary document is established to be a valid will. The process involves proving a will to the satisfaction of the court. Unless the will is set aside, the probate process is conclusive upon the parties to the proceedings (and others who had notice of them) on all questions of testamentary capacity, the absence of fraud or undue influence, and proper execution of the will. Probate does not prevent inquiry into the validity of the will’s provisions or on its proper construction or legal effect. To ensure the validity of a will, you should consult The Finity Law Firm and our experienced Orlando probate lawyers.
How long does probate last in Florida?
The length of time necessary to probate a will in the state of Florida depends on a variety of factors. First, all assets must be located and accounted for. If the decedent organized their affairs before passing, then this step will conclude quicker than having to locate bank and retirement accounts, applicable insurance policies, and any other interests in real or personal property.
Next, all possible creditors must be reasonably identified as well as notified of the probate proceedings. There is a three-month time frame in Florida for creditors to bring forth claims after being notified of the testator’s death. After all claims have been settled and/or the period for claims closes, then the executor may begin distributing assets to the beneficiaries. If it is necessary that a house or other property must be sold to settle the estate, then the time spent on the market will add to the length of probate.
Lastly, after all creditors have been paid and all distributions have been allocated to the beneficiaries, the personal representative or executor will seek permission to close probate from the court. With all of the factors in mind, the best case scenario for quick probate process would be four months. Typically, a probate in Florida can take upwards of 6 to 8 months. And in some cases, probate can last over a year.
What are some probate rules in Florida?
After death, the decedent’s will must be produced and filed in the probate court of the deceased’s county of domicile. If no will is produced, or if the will was not properly executed, then the estate will pass through the intestacy laws of the state.
If there is a will, probate begins and the document must be proven to be valid. A “self-proven” will (one that has been signed by two witnesses in the presence of a notary) is likely to be accepted quickly by the court. Wills that need to be proven require affidavits from proponents of the will, typically family, witnesses, as well as beneficiaries attesting to the will’s validity.
If the will nominates a personal representative, or sometimes referred to as an executor, then that selected individual will likely be confirmed and appointed by the court, as long as they qualify according to the laws of the state. If no personal representative or executor is named, an individual may petition the court to serve. If nobody petitions the court to serve as a personal representative, the court may nominate a qualified individual.
The estate must then pay all necessary taxes, settle any outstanding debt claims of creditors, and pay all court and probate associated costs.
Once all taxes, debts, and fees are settled, the assets of the estate may be distributed by the executor. Once all assets are distributed, and all the terms of the will are met, then the probate may close, and the court can dismiss the executor. The Florida Bar has provided a Probate In Florida consumer pamphlet for additional information.
What property enters Probate in Orlando?
Any property owned by the decedent that does not transfer ownership naturally to another individual or lacks a predetermined arrangement to decide the ownership transfer will enter the probate process. It may be easier to understand by explaining assets that would not enter probate.
In Florida, if a spouse (who is legally married) dies, then the parties’ primary domicile typically transfers to the surviving spouse. The ownership interest the surviving spouse receives depends on whether either of the parties has any surviving children.
A bank account that is jointly held with the right of survivorship with another individual or transferable on death does not require probate to transfer ownership. On the other hand, if a bank account does not have any natural beneficiaries, then the account shall enter probate.
Also, a life insurance policy is payable to a particular beneficiary or beneficiaries, the life insurance will pass outside of probate. However, if a life insurance policy is payable to the decedent’s estate, then the policy will become a probate asset.
Trusts are a helpful tool that can be utilized for the smooth transition of property from one owner to another by minimizing the need for probate altogether.
What is a Personal Representative or Executor?
The personal representative or executor is an individual, or sometimes individuals, that have been nominated in a will to manage the estate of the deceased. The individual must be affirmed by the probate court. The executor will also oversee the distribution of assets in accordance with the will and ensure they are distributed within an appropriate time frame. The personal representative in Florida can be any individual of at least 18 years of age, and of mental competence, who is fully able to perform the tasks and duties required of them.
If the representative is not an immediate family member or spouse, then they must be a Florida resident to oversee an estate in Florida. The executor may not have any felony convictions unless that requirement was expressly waived by the will itself. The Probate Court will usually confirm the appointment of the executor that was nominated in the will as long as the individual is of legal age, is competent, and possesses the legal standing to do so.
If the nominated representative is viewed as unfit or declines the responsibility, then the court will ask the surviving spouse’s recommendation for appointment. If there is no surviving spouse, the court will ask the beneficiaries of the will for a majority decision for appointing a personal representative. If a majority cannot be obtained, then the court will call a hearing to determine the executor of the will according to who is best qualified to serve. If the decedent dies intestate, a similar process to determine the personal representative is also followed.
The executor’s duties are complete when probate is finished, all assets are distributed, taxes and fees are paid, and finally when the court discharges the personal representative.
Should I seek assistance from an attorney if I am the executor of a will?
Yes. An executor should always seek assistance from a qualified estate planning attorney in Orlando. Many legal issues arise throughout the process that can complicate the proceedings and overwhelm the personal representative.
A qualified estate planning attorney can provide all the legal instructions and time frames that accompany the responsibilities acquired through becoming the executor of an estate including addressing creditor’s claims. The cost of the attorney can be included with the fees charged to the estate. Hiring an Orlando estate planning attorney will alleviate a lot of stress and uncertainty during an already difficult time. Contact the Finity Law Firm today to see how our licensed estate professionals can help expedite the probate process for you.