Q. Do I need an attorney to go through FL probate?
Florida law requires an attorney in a formal probate proceeding unless the personal representative is the sole interested party. Unfortunately, most non-lawyers would have a very difficult time knowing how to proceed without an attorney. There are books in the public libraries in Florida that are written with the intent of guiding a non-lawyer through the probate process. For individuals who don't have the time to educate themselves in this manner, we've found that probates with only one interested party are often the least expensive and the quickest to complete.
Q. How long should I expect the probate process to take?
Summary Administrations average 4-8 weeks. Formal Administrations, without estate taxes due, typically take 4-6 months.
Another common exception occurs when a will from another state does not meet the requirements for probate in Florida, either due to insufficient execution at the time of drafting or because the format (e.g., a holographic will) does not comply with Florida law. In these cases, additional requirements may lengthen the time needed to complete the probate process.
Other issues that can either speed up, or delay, a probate proceeding are the ease with which required documentation can be obtained. For example, a certified copy of the death certificate for the decedent of the estate must be submitted with the probate pleadings. If the heirs happen to have additional certified copies, this can significantly shorten the time needed to obtain one.
Also, if the estate is testate ( there is a will), the original will, or an exemplified copy of it from the out-of-state court, as well as exemplified copies of out-of-state probate proceedings, must be obtained.
Other potential issues, were applicable, include obtaining the oaths of witnesses to a will, the complete legal descriptions of real property, and signatures from multiple beneficiaries/petitioners, and foreign probate proceedings or wills that require translation. While this list is not exhaustive, difficulty or delays in obtaining any one of these items can add to the time needed to complete the probate proceedings in Florida.
Q. Do I need to hire an attorney whose office is in the same city or county as the decedent?
In uncontested probate proceedings it is uncommon that the client or attorney be required to physically appear in court. This benefits both the the client and the overloaded court system. Where a hearing is required, judges will often accommodate the parties by allowing them to 'appear' by phone.
Q. If there is a surviving spouse, is it necessary to go through probate?
If the deceased spouse owned any assets solely in their name (i.e with no designated beneficiaries, or joint owners with rights of survivorship), then yes, a probate administration would likely be required.
If the decedent passed away without a properly executed Last Will and Testament, defined as 'intestate,' Florida law determines the distribution of the assets.
The intestate share of the surviving spouse is:
(1) If there are no surviving children (this includes grandchildren, etc.) of the decedent, the entire intestate estate.
(2) If there are surviving children of the decedent, all of whom are also children of the surviving spouse, the first $60,000 of the
intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the
$60,000 shall be valued at the fair market value on the date of distribution.
(3) If there are surviving children, one or more of whom are not children of the surviving spouse, one-half of the intestate estate.
The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, descends per Florida law as follows:
(1) To the children of the decedent.
(2) If there are no children of the decedent, to the decedent's father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order
stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
Q. What if the original will (the actual signed document) cannot be located?
A. Florida laws presumes that if the original will cannot be produced, it was the testator's intent that it be destroyed, and the probate process would follow the intestate (no will) succession process outlined above.
Q. What if there is a surviving step-parent and there is no will?
A. This is a frequent occurrence in Florida as many people relocate here to retire. Inevitably a spouse will pass away and the surviving spouse will remarry. If a will is never drafted, certain provisions under state law dictate how the estate will be divided.
As an example, assume Mr. Smith has three adult children and when their mother died, he subsequently remarried and did not draft a will.
Mr. Smith passes away, leaving his current wife and three children from a previous marriage as legal heirs. If Mr. Smith placed his current wife on the deed to his home, under state law she would become the new sole owner.
If he had not put her on the deed, she would be entitled a 'life estate' in the home which in effect gives her the right to live in the home until her death, but not the right to sell it (unless a special petition is filed). At her death ownership of the home would pass to the three children.
In both instances above, home ownership or life estate, the step-mother would then split the remaining assets of the estate 50-50 with the three children.
Q. What if there are bills due? Must I pay them?
A. First, make sure you speak with a Florida probate attorney without delay before paying the bills owed by the decedent.
There are basically two types of debt:
"Secured" debt which includes things such as mortgages, vehicle loans, and any loans that have been secured by pledging collateral. These loans have certain provisions that require important consideration in the probate process.
And,
"Unsecured" debt which generally includes credit cards, personal loans and any loans that have not been secured by the pledge of collateral.
Unless you or any other heirs of the estate were a signatory to the decedent's original loan, debts of the decedent are not an
obligation of the heirs. They are, however, an obligation of the estate. Whether there are sufficient assets in the estate to pay
them is determined through the probate process.
Known lenders (also known as "creditors") of the decedent have statutory (legal) rights to being notified of the probate of a
deceased borrowers estate. In a summary or a formal probate part of the process will entail notifying any known creditors that the estate is being probated.
Other considerations involving the decedent's debts involve discussing the options available to the estate with a probate attorney.
Q. Do Life Insurance benefits go through probate?
A. This depends. If the life insurance policy has a named beneficiary or beneficiaries, the insurance company will typically require proof of death (e.g., a certified copy of the death certificate) and the completion of a few forms before they will release funds to the designated beneficiaries. In this case, life insurance (this includes annuities) bypass or do not go through probate for distribution to the heirs. The proceeds are paid directly to the designated beneficiaries.
If a life insurance policy does not have a designated beneficiary, the insurance company will typically require some form of probate before releasing funds.
Contact the life insurance company for questions regarding death benefits from life insurance policies (including annuities).
Q. Where can I learn more about a licensed Florida attorney I'm considering hiring for my case?
A. You can contact the Florida Bar here.
Q. Where can I get a copy of the Florida Bar's free, on-line consumer pamphlet, Probate in Florida? (Revised 5/06)
A. Click here.
Since laws change over time, some provisions in this FAQ section may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.
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