At Hill & Bondani, PLLC, we understand that going through probate can be a confusing and stressful time. That is why our Florida probate attorneys are always here for our clients, to answer their questions and assist in taking whatever actions are necessary to conclude the matter in a timely and sensitive manner. From court actions, to asset collection, to dealing with banks and other creditors, we stand with our clients through all stages on the probate process in order to ensure that everything is done right the first time and there is no need to revisit an issue once the probate estate is closed. If you or a loved one are facing the unwelcome prospect of a probate proceeding, contact our Ponte Vedra Beach office to see how we can help make your life easier.
Below are some common questions relating to probate law and the probate process. If you have any more detailed questions, please do not hesitate to contact us to see how we can assist you.
1. What is probate?
Probate is the legal process by which a decedent’s estate is administered and settled. In Florida, the probate estate is supervised by a designated personal representative and the probate process is overseen by the Florida court system, either through the civil courts or a specially designated probate court. Probate begins with the filing of the decedent’s will (if any), death certificate, and a petition for probate administration with the appropriate court. The process concludes when the debts of the decedent have been satisfied and the remaining assets of the decedent have been distributed to the appropriate beneficiaries. In between these two points there exists a number of legal requirements which must be addressed in order to ensure that the various interests of the decedent’s probate estate are accounted for properly.
2. What types of probate are available in Florida?
Probate in Florida can take on several different forms:
Disposition without administration is available when the decedent leaves behind only personal property that is exempt from the claims of creditors and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s last illness.
Summary administration is available when the decedent leaves behind only personal property that is exempt from the claims of creditors and nonexempt personal property the value of which does not exceed $75,000; or in instances where the decedent has been dead for more than 2 years. Summary administration is not available if the decedent’s will specifically requires formal administration.
Formal administration is the longest form of probate in Florida and is required in instances where the decedent’s estate does not qualify for disposition without administration or summary administration. Formal administration can be a lengthy process which has the potential to significantly diminish or exhaust the assets of the decedent’s estate.
Ancillary administration is a form of probate which is required if a decedent from another jurisdiction died while owning real estate in Florida. The main probate estate is opened in the decedent’s home domicile and the ancillary probate is opened in the State of Florida for the purpose of distributing the property in accordance with the administration requirements of the decedent’s main estate.
3. Do I need a lawyer for probate?
Every circumstance is different. However, most forms of probate do require the assistance of a qualified Florida probate attorney in order to navigate the various legal issues that may arise. Additionally, many clients prefer the security of knowing that they have a trusted advisor who can assist them in getting through what is often a difficult emotional time.
4. Are there ways to avoid probate?
Yes, and many Florida estate planning clients are drawn into their local attorney’s office because they have gone through the probate process as part of a loved one’s estate and want to ensure that their survivors are not faced with the same possibility. Depending on the assets involved and the client’s individual needs, there are several effective methods of probate avoidance. Joint property ownership, Florida revocable or irrevocable trusts, and beneficiary designations are a few examples of probate avoidance mechanisms which the experienced Florida estate planning attorney may utilize to accomplish their client’s goals.
5. How are creditors of the decedent paid?
Florida law requires that creditors of the decedent be compensated through the probate process. However, not all creditors are considered equal and not all assets of the decedent are available to ensure payment. The Florida Constitution and the Florida Statutes determine the order in which creditors are paid and the assets which may be utilized to satisfy the debt. Examples of assets that are exempt from the claims of creditors include the decedent’s residential homestead, household furnishings up to $20,000, personal property up to $1000 and personal automobiles.
Satisfying creditor’s claims is an important, but complicated, part of the probate process. If the personal representative does not follow the statutes directly, for example by paying a lower priority creditor at the expense of one with higher priority, they may be found personally liable to the higher priority creditor for nonpayment. Dealing with creditors is another important reason to consult with a Florida probate attorney.