What is Probate?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
Probate proceedings are usually handled in the probate court of the county of the decedent’s domicile at the time of death or, in some cases, in the county in which the decedent owned real property.
The nature of the proceeding will often depend on the date of death of the decedent and the value of the assets in the probate estate. As a general rule, most claims can only be enforced within two (2) years of a decedent’s death.
A probate proceeding is often required so that title to the real property can be left to the heirs or beneficiaries entitled to receive the property. Otherwise, the heirs or beneficiaries will not be able sell the property and most title companies will not insure the title in the names of the heirs or beneficiaries. This can be particularly important when for example, a parent and child are on the note and mortgage to a property in foreclosure and either the parent or the child dies.
Types of Probate
Is generally filed when the total estate value exceeds $75,000 or in a small estate where there are other issues that require the court’s action or intervention (such as estate debts which exceed the value of estate assets). Generally formal administration can take 6 to 12 months to complete or more and usually falls into one of three categories:
- Testate Formal Administration – When a person dies leaving a will. An estate tax return may be required and will depend on the estate laws in effect at the date of death of the decedent. An estate tax return is currently required to be filed within nine months of a decedent’s death, unless an extension is obtained.
- Intestate Formal Administration – When a person dies without a will. An estate tax return may be required and will depend on the estate laws in effect at the date of death of the decedent.
Is filed when the total estate value is $75,000 or less (excluding real property) or the decedent died two or more years prior to filing. Summary probate does not require the appointment of a personal representative and may take 2 to 3 months to complete. Generally summary administration falls into one of three categories:
- Decedent Died More than Two Years Ago – If a person was a Florida resident at the time of his or her death, or was a non-resident who owned Florida real estate, and he or she has been deceased for more than 2 years. However, the Last Will and Testament may influence the type of administration proceedings.
- Decedent Died Less than Two Years Ago – Less the value of property exempt from the claims of creditors, does not exceed $75,000, then a summary administration may apply. The value of homestead is not considered when valuing the property for a summary administration. The determination of whether property is homestead property, however, must normally be made by the Courts.
If a person was not a Florida resident at the time of his or her death, but who dies leaving real property in Florida, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have Ancillary letters issued, if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate shall be entitled to have letters issued, if qualified to act in Florida.
The personal representative acts in the same capacity as a formal administration as set forth in Florida Law. All proceedings for appointment and administration of an ancillary estate shall be as similar to those in original administrations as possible.
Ancillary administrations can be summary or formal administrations.
Disposition Without Administration
This is available if estate assets consist solely of exempt property (determined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.