Imagine anyone steals the assets after the real owner dies.
Probate offers a method for preventing fraud against estates. It is a way to freeze the estate until a court determines that the will is valid, that all the persons concerned have been notified, that all the property in the estate has been identified and assessed, that the creditors have been paid and that all the taxes have been paid.
Probate is a court-supervised mechanism for identifying and collecting a deceased person’s assets (decedent), paying the debts of the deceased, and distributing the assets of the deceased to its beneficiaries.
It is important to understand how Florida Probate Court works.
Florida Court System
In Florida, probate is needed when someone who has resided or owned Florida property dies and leaves assets behind. The Florida Probate Code contains detailed instructions for the process and requires a licensed lawyer to administer the estate in nearly every case. You’ll want an experienced Florida probate attorney representing the interests of both your and the estate and who understand the Florida Court system.
How does the process work?
1. Initiating the Florida Probate Court process
While any beneficiary or creditor can initiate probate, normally the person named in the will as a Personal Representative (PR), also known as an executor, usually begins the process by filing the original will with the court and filing a petition for administration with the probate court.
If there is no will, the Petition for Administration is generally filed by a close relative of the decedent who simply wants to inherit from the estate.
2. Appointing the PR
A Florida-based bank or trust company, any individual residing in Florida, and a spouse or close relative not necessarily residing in Florida are all eligible to serve as the PR.
Non-relatives not residing in Florida are not eligible to serve as PR.
If the decedent has a will, then if eligible, the person named in the will as the PR will serve. Where that person is unable or unwilling to serve as a PR, the person selected in the interest of the estate by a majority of the beneficiaries shall select PR.
3. No PR in Summary Administration
No PR is assigned in summary administration.
The petitioner, most likely a surviving spouse or family member, must file a Summary Administration Petition and include all the other documentation needed, such as the Last Will and Testament, a Death Certificate, and any other documentation related to the administration, to the Probate court.
4. The validity of the Will
A crucial aspect of probate administration is checking the will is valid.
5. Final Accounting
When an estate has been administered, indicating that payments have been made to creditors, the PR is expected to make a final accounting of all the acts taken concerning the administration of the estate.
This accounting is filed with the court, and a hearing is held with the court to approve the accounting. Any interested party can file an objection to the accounting within 30 days of receiving the accounting notice.
6. Order of the Judge
When the probate judge analyses the documents, and he or she is satisfied that all the conditions are met, and the estate has no creditors, and/or the estate’s assets are exempt, then the probate judge at that stage will sign an order approving the administration and the asset transfer.
Probate Courts and Judges in Florida
In most counties in Florida, probate is held in specialized probate courts that are a subdivision of the county’s circuit court.
The Florida Circuit Courts cover the jurisdiction for probate.
The Circuit Court’s Probate Division has jurisdiction over proceedings concerning the settlement of decedents’ and minors’ estates, the granting of wills, guardianship, involuntary hospitalization, and the determination of competencies.
Probate proceedings are lodged with the clerk of the circuit court, typically in the county where the deceased lived at he or she passed away.
The clerk is also required to be paid a fee for filing. The clerk then assigns a file number after you file for probate, and keeps an ongoing record of all papers filed with the clerk for the administration of the probate estate of the decedent.
Hiring an expert attorney for the Florida Probate Court process
Probate is necessary when a Florida court order is required to transfer ownership of the properties of the deceased or to distribute the estate’s assets.
For example, if a deceased owned solely any real estate at the time of his or her death, the estate would have to go through the probate process to transfer the title of that real estate to the heirs or beneficiaries of the decedent.
The beneficiaries or heirs would first have to seek an attorney’s assistance to go through the Florida Probate Court process. In such a situation, please consult with an experienced attorney at the Finity Law Firm.
References
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