What is Probate?
Probate is the legal process in which the Circuit Court determines whether or not a will is valid. Next, the court is concerned with the gathering and reporting of the decedent’s assets, paying the decedent’s last bills including any taxes and finally with distributing the decedent’s property to the designated heirs.
If an individual dies without a will the same procedure is followed, except the state statute (called the Statute of Descent and Distribution) is used to determine which of your heirs gets your property and how much they receive. The state statute does not take into consideration any tax consequences in making the distribution of assets, nor does it take into consideration your feelings about the people who get your property.
Are all probates handled the same? No, there are three types of probate proceedings that are available in Florida to Florida residents. The size and make-up of the estate will determine what type of proceeding is necessary.
In addition, there is Ancillary Probate which is probating assets owned by someone that died out-of-state and they will not residents of Florida. I will not discuss Ancillary probate, because this doesn’t affect Florida residents. However, Florida residents should know that some form of Ancillary Probate may affect their out-of-state property if it is held in their name alone.
- Disposition of Personal Property Without Administration
The disposition is filed to request release of assets of the deceased to the person who paid the final expenses; such as funeral bills or medical bills for the last 60 days. This procedure may be accomplished with the filing of a petition. The form required to file the disposition is available from the Clerk’s Office in the Probate Department. This cannot include real property. The value of the decedent’s assets is less than $6,000. The Clerk of Courts Office can help with this type of probate.
- Summary Administration (sometimes referred to as short-form probate)
Summary administration may be filed when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years. Again, this cannot include real property (time-shares are routinely handled in summary administration proceedings). This proceeding requires only the time that it takes for the court to review the file and to sign an order of distribution.
- Formal Administration (sometimes referred to as long-form probate)
This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the representative will act is determined by the court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.
Are there any problems with probate? Formal Administration is the most costly and inefficient way to transfer your property at death. It is normally presumed to take about 9 months, but many years ago I took over the work on an estate that was 25 years old. In addition to being lengthy many problems can arise in formal administration of an estate. Examples would be: Filing for determination of exempt assets, filing for determination of homestead property, creditor suits, finding lost relatives or beneficiaries, etc.