1. What is Probate? Probate is a court proceeding to administer the property of a deceased person (“decedent”). In Florida, all probate proceedings are in the Circuit Court of the county where the deceased person was a permanent resident.
2. Are there different kinds of probate proceedings? Yes. If an estate is greater than $75,000 in value, then a Formal Administration is usually required. For estates of less than $75,000 in value or when the decedent has been dead for more than two years, a simplified Summary Administration is available.
3. How much does Probate cost? As of December, 2012, the filing fee charged by the Clerk of Courts to start a probate in Miami-Dade County is $401.00 for a Formal Administration. Summary Administrations are $236 if the value of the estate is less than $1,000 and $346.00 if the value is $1,000 or more. Attorney’s fees for probate are in additional to costs, and vary widely depending on many factors, including the size and complexity of the estate, and the presence or absence of complicating factors. Attorneys fees are normally based on either an hourly rate or a percentage fee or a combination of the two.
4. How is a Probate started? A Petition for Administration is filed with the Clerk of the Court in the county where the decedent permanently resided. A certified copy of the Death Certificate of the decedent is filed along with the Petition for Administration, or shortly thereafter. The court then reviews the Petition for Administration for accuracy and completeness before issuing any orders on the Petition.
5. Will a bond have to be posted? The court has discretion to require the filing of a bond, even if the decedent’s will waives a bond. In Miami-Dade County, the court routinely requires either the posting of a bond, but will waive a bond if a restricted bank depository account is established. If a restricted bank account is used instead of a bond, then all money must be deposited into that account, and no withdrawals are permitted without further order of the court. The cost of a bond is a normal expense of administration paid or reimbursed out of the assets of the estate. Bonding companies typically require a financial disclosure by the Personal Representative before agreeing to issue a bond. No bond is required for a Summary Administration.
6. How long does Probate last? Most estates are resolved in less than one year. Larger estates generally take longer, especially if a Federal Estate Tax Return (Form 706) must be filed, or if there is a will contest or other probate disputes. In such cases, probate can last two or more years.
7. What happens if I have a will? Contrary to popular belief, a will does not avoid probate! The word “probate” comes from a Latin word meaning to “prove” the will. While a well-drafted will is the cornerstone of good estate planning, having a will does not mean that probate will be avoided.
8. What is a Personal Representative? In a Formal Administration, the court appoints a Personal Representative to handle the estate. The Personal Representative is the same as the “Executor” or “Administrator” of the estate. In Florida, all Personal Representatives are required to be represented by an attorney.
9. What are the duties of the Personal Representative? The Personal Representative has many duties, such as to protect and preserve the assets of the estate, to pay valid creditors’ claims, to file required tax returns and pay taxes owed, and to carry out the terms of the decedent’s will.
10. Who are the parties to a Probate proceeding? The beneficiaries under the will, if there is one. Otherwise, if there is no will, the heirs of the estate. Creditors of the decedent are also “interested parties” in a Probate, as well as governmental authorities such as the Internal Revenue Service and the Florida Department of Revenue.
11. Will the government get my estate if I die without a will? Only if you die without a spouse, children, grandchildren, or other relatives such as brothers/sisters, nieces/ nephews, first cousins, etc. Remote cousins are not considered heirs under Florida law, but anyone can be named as a beneficiary under a will. The State of Florida will take your estate (“escheat”) only if you are not survived by a beneficiary or an heir at law. In some cases, it is unclear who are the heirs at law of a decedent, and the court must make a determination of heirs. This situation can lead to additional expenses and delays that could have easily been avoided if the decedent only had a well-drafted will.
12. Why do people want to avoid Probate? There are many reasons why a person might want to avoid probate, such as reducing costs and delays in distribution of assets, and insuring privacy. Good estate planning can help avoid Probate. However, there are some advantages to Probate, such as providing a method to shorten the time that creditors can present claims, and insuring that estate administration is conducted in accordance with law under the supervision of a Circuit Court Judge.
For more information concerning Florida Probate, please call us at (786) 454-8827.
The above is general information which is not intended to be legal advice.