Lakeland Probate Lawyer

What is Probate in Florida?

Probate is a vast area of law; however, most people use the term probate interchangeably with the concept of administration of a decedent’s estate. Under Florida law (and in most jurisdictions throughout the United States), some level of court action is required in many cases in order to resolve the assets and debts of an individual who has passed away. The complexity of administering or “probating” an estate will depend on a number of factors, including whether the decedent left behind a will,  the assets involved, and the debts of the decedent when they passed away.

How do you know if probate is necessary?

Whether or not one needs to probate a decedent’s estate will depend mostly on how the decedent held assets during their lifetime. There are many assets, including real estate, vehicles, and bank accounts, that may be held or titled in such a way as to pass those assets to a beneficiary or other individual upon the decedent’s death without any further court action. On the other hand, assets not transferred outside of a decedent’s estate will need to be addressed through probate proceedings in the court.

There are certain circumstances where probate may be filed even when the estate does not have any assets, such as when the decedent’s property has been placed in a revocable trust beforehand, or when the only asset involved is the primary homestead of the decedent and will be transferred by will or in accordance with the Florida laws on intestacy. These particular issues are complex, and an attorney should be consulted so you have a proper understanding of how best to proceed in such circumstances.

Are there different types of probate in Florida?

Yes. Depending on the assets involved and how long it has been since the decedent has passed away, there are different probate proceedings that may be used.

Most estates will go through formal administration, which has several steps to complete and will generally take several months, and in some cases over a year, to complete. Additionally, formal administration requires the appointment of a “personal representative” of the estate, which is the individual responsible for handling the affairs of the estate during the administration process.

If the amount of assets involved is under a particular amount, a process called summary administration may be used. This is also the case when the decedent has been dead for over two years prior to the probate proceedings.

Summary administration is generally a less complicated process and can be accomplished in a much shorter timeframe. Nonetheless, caution should be taken when filing summary administration, especially when filed within two years of the decedent’s death, as there can be complications if the decedent owed any debts or when it may be unclear as to who is entitled to the assets of the estate.

There is also a procedure for estates with very few assets known as disposition without administration. This will be used when the assets in question do not exceed certain funeral and medical expenses of the decedent.

Do I need to pay the debts of the decedent?

Family members are not personally responsible for the debts of the decedent; however, creditors of the decedent may have a right to payment from the assets of the estate. There are several rules regarding what assets are available to pay the creditors of the decedent and in what order certain creditors are paid from those assets. There is also the responsibility to make reasonable efforts to identify any potential creditors of the estate in most circumstances, so it is a good idea to exercise caution and seek the proper legal advice prior to dealing with the assets of a decedent.

What do I do with a decedent’s original will when they have passed away?

In Florida, the person in custody of the original last will and testament of a decedent should file the will with the Clerk of Court in the county of residence of the decedent within ten days of learning of the death of the decedent. Failing to follow this provision may have legal consequences if court action is taken to compel the filing of the will.

What is homestead?

Homestead means different things in different circumstances under Florida law. Sometimes when people refer to homestead, they are talking about the ad valorem tax exemption given by the property appraisers office on a person’s primary home in Florida; however, in the context of an estate, homestead is generally referring to a specific provision in the Florida Constitution that protects a decedent’s primary home from their general creditors and places certain restrictions on how this property may be transferred. Dealing with real property in a Florida probate proceeding can be tricky, and it is best to consult with an attorney on issues relating to the decedent’s homestead.

Do I need to hire a lawyer to probate a decedent’s estate?

There are circumstances where you may be required to use the services of an attorney to complete the probate process, such as when formal administration is required and there are multiple beneficiaries of the estate other than the person petitioning to be appointed the personal representative. There are other instances where an attorney may not be required; however, due to the complexity of the legal issues involved with many estates, it is advisable to consult with a licensed attorney to determine your options.