What is Florida Probate?
Here's a nutshell explanation of Florida probate administration:
- Probate administration is a court process
- Assets are collected, creditors are paid and beneficiaries receive whatever remains
- Assets = Real Estate or Personal Property
- Two kinds of “Probate”: Summary & Formal Administration
- The existence of a Will does not eliminate the need for probate
- In Florida, “Personal Representatives” are in charge of “probating” the estate
- Personal Representatives must have attorney representation (attorneys do most of the work)
- Most probate cases are filed by mail with telephone hearings (so your attorney does not have to be in the county where probate is required)
Probate Procedure
Florida Probate Law is more than just an exercise in form filling. There are rules and procedure that must be followed or the clerk and the court may stonewall your progress. Most people do not even think about the probate process until they find they cannot access assets of the decedent. Additionally, real estate cannot be sold, transferred, insured, leased/rented until the property is put through probate court.
Last Will and Testament Does Not Avoid Probate
A very common misconception is that if you have a Last Will and Testament, then you do not need to put the estate through probate. This is completely false. A Will is a set of instructions on how assets should be distributed and who should be nominated as the personal representative – that is – who shall administer the probate once the court authorizes them to take action.
Note: A personal representative must be appointed by the court before they have actual authority to proceed.
Often, there are alternatives to probate depending on how assets were held and titled. There are also opportunities for reimbursements instead of inheritances, if a reimbursement will suffice. The question usually turns to “what kind of probate is really necessary”?
These are the two main types of probate in Florida. Formal administration is a the traditional form of probate wherein a personal representative is appointed and Letters of Administration are issued. Summary Administration is, as the name suggests, an abbreviated form of probate. No personal representative is appointed in a Summary Administration. Instead, a petition is filed asking for streamlined distribution of the estate. Not every estate is eligible for Summary Administration and in many cases, even if the estate is eligible, it may not be the best choice.
There is no statute of limitations on when probate must be administered. However, once probate is initiated, there are many deadlines and formalities to be addressed.
It is especially important to note that it is sometimes not wise to start probate immediately. It is critical to make an assessment of the decedent’s creditors before starting. Some assets of the estate are exempt from the claims of creditors but they must be properly declared to be exempt to be protected.
On the other hand, delaying probate can create problems. As previously mentioned, most real estate cannot be transferred or managed without probate. Many people make the mistake of listing a property for sale before probate and then learn that the sale cannot be completed until probate is started. This delay may add weeks or months to the sales process and buyers may decide not to proceed with the transaction if they are required to wait. Aside from real estate, starting probate in a timely manner will give the personal representative the power and authority needed to preserve and secure assets that are at risk of loss or depreciation.
The answer is never “overnight”. Depending on the type of probate administration and court response times, probate may take just a few weeks or several months. As you might imagine, litigated estates may take years to close. However in uncontested matters, there are still many steps that must be taken. Failure to complete any of the critical steps can add significant delays to a probate proceeding. We find that most Summary Administration cases can be completed between 1 to 4 months. Formal Administrations tend to complete within 7 to 9 months. Note that during Formal Administration, there are many out-of-court concerns that must be accomplished such as: securing assets, addressing creditor claims, liquidating assets, preparing final tax returns and preparing formal accountings. Efficiency is key in probate administration.
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