What happens during probate in Florida?

Since most people will experience probate of someone else in their life, it is important to have a basic knowledge of the process.

Although you likely have heard the term "probate," you may not be exactly sure what it means. Since it is likely that you will be involved with the probate process at some point in your life, it is helpful to know the basics of it.

Simply put, probate is a court proceeding involving a dead person's estate. The process entails identifying and gathering the assets of the person. Once this has been done, all valid debts of the person are paid, as well as estate administration expenses. After this is done, the assets are distributed to the decedent's beneficiaries.

In Florida probate is necessary in order to legally transfer ownership of most assets that are in the decedent's name only. However, assets with beneficiary designations, such as life insurance and jointly owned property do not have to pass through probate to transfer ownership; they are distributed to the designated beneficiaries immediately upon death. If the decedent had a will, the assets subject to probate are distributed according to its terms. In cases where there is no will, Florida law determines the distribution of assets.

Overview of process

During the process, the decedent's will and other papers are filed with the court. A judge is then appointed, who supervises the process and resolves any disputes that arise (i.e. will contests). Additionally, the judge determines whether the decedent's will is valid. If the decedent died without a will, the judge determines who will inherit the assets according to Florida law.

In many cases, the will designates a personal representative. However, if one is not designated or if there is no will, the judge will appoint someone for the position. The personal representative performs the following roles:

  • Identifying and inventorying the decedent's assets
  • Notifying the decedent's creditors of the death
  • Filing tax returns
  • Paying valid creditor claims
  • Distributing the assets subject to probate
  • Paying estate expenses

If there are any problems, an interested party may file the proper motion and the court can intervene and issue an order settling the dispute. If there is any mismanagement of the estate's assets, the personal representative can be held personally accountable to the decedent's beneficiaries. Once the personal representative has carried out his or her role, the estate is closed by the court, which ends the probate process.

The length of the probate process depends on the complexity of the estate. For simple and modest estates, the process can be completed in five or six months. However, probate for complex estates involving significant assets that are located outside of the state can take significantly longer.

An attorney can help

You may have heard that it is desirable to avoid probate (e.g. by setting up trusts) because it is expensive. However, this is not always the case, especially for most estates. In fact, probate can benefit certain estates. An experienced estate planning attorney can advise you on the most efficient way to ensure that your assets are distributed according to your wishes, while minimizing taxes, fees and obstacles that can complicate the swift settling of your estate.