Florida Probate - Probate South Florida

The Law Office of Lawrence S. Silver was established in 1980.

Probate in Florida

WHAT IS PROBATE?

Probate generally is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses of administration, and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.

There is also a non-court supervised administration proceeding called "Disposition of Personal Property Without Administration." This type of administration only applies in limited circumstances.

WHY IS PROBATE NECESSARY?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the Court, it will be ineffective to pass title to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership to the decedent’s assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

WHAT IS A WILL?

A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In his or her will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative (Florida’s term for an executor) of his or her choosing to administer the estate.

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.

WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?

If someone dies without a valid will, he or she is “intestate.” Even if the decedent dies intestate, his or her assets are almost never turned over to the State of Florida. The State will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The personal representative is the person, bank or trust company appointed by the Court to be in charge of the administration of the decedent’s estate. In Florida, the term "personal representative" is used instead of such terms as "executor, executrix, administrator and administratrix."

The personal representative has a legal duty to administer the estate pursuant to Florida law. The personal representative must:

•Identify, gather, value and safeguard the decedent’s probate assets;

•Publish a "Notice to Creditors" in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law;

•Serve a "Notice of Administration" to provide information about the estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s estate;

•Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify? these creditors of the time by which their claims must be filed;

•Object to improper claims, and defend suits brought on such claims;

•Pay valid claims;

•File tax returns and pay any taxes properly due;

•Employ professionals to assist in the administration of the estate; for example, attorneys, certified public accountants, appraisers and investment advisors;

•Pay expenses of administering the estate;

•Pay statutory amounts to the decedent’s surviving spouse or family;

•Distribute assets to beneficiaries; and

•Close the estate.

WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?

The primary purpose of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors. This gives the creditors an opportunity to file claims in the decedent’s estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the Clerk of the Circuit Court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s estate, must be paid before making distributions to the estate beneficiaries. The Court will require the personal representative to file a report to advise of any claims filed in the estate, and will not permit the estate to be closed unless those claims have been paid or otherwise disposed of.

The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

The estate will not have any tax filing or payment obligations to the State of Florida; however, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of January 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?

Florida law provides for several alternate abbreviated procedures other than the formal administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Another alternative to the formal administration process is "Disposition Without Administration." This is available only if estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) up to $6,000 in funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.

The assets in the decedent’s revocable trust are a part of his or her gross estate for purposes of determining federal estate tax liability.

Lawrence S. Silver (C.V.)

Florida State University Bachelor of Science Business Administration 6-1971;South Texas College of Law, Juris Doctorate, Houston, Texas 1-1980; Inactive-Admitted to Texas Bar
5-1980. Active-Admitted to Florida Bar 7-1980; U.S. Southern District of Florida 8-1981; 5th & 11th U.S. Court of Appeals 10-1981; Past President Coral Gables Bar Association 1990; Nasd Securities Arbitration Chairman-Arbitrator; .

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