When a loved one passes away, it can be challenging to understand how our complicated legal system works, which is why many individuals come to us with a common question: What is the probate process in Florida?
It’s a difficult time for everyone involved, but understanding the probate process can help you and your loved ones move forward. And luckily, it’s less complicated than you’d think.
A probate is a process used in court to handle a loved one’s estate after death. State laws vary, and it’s important to understand the differing timelines and statutes that come into effect when this happens. In Florida, a probate is almost always required when someone passes away. For that reason, knowing the ins and outs of the probate process in Florida is paramount in correctly handling the wills and estates. This includes understanding how to avoid probate in Florida, along with the particular steps one must take to ensure a satisfactory result.
Who Can File Probate in Florida?
When it comes to understanding probate rules and processes, it’s important to know who can file probate in Florida. An executor, or personal representative, is most often the person tasked with handling the duties toward transferring property from the decedent’s estate to the heirs. These duties can include:
- Gathering and valuing your loved one’s assets, and filing an inventory for them
- Opening the estate through the court
- Paying debts owed by your loved one, and filing their final tax return
- Handling estate taxes, closing accounts, and closing the estate
- Distributing remaining property according to the will’s provisions to beneficiaries
Executors should meet with an attorney to facilitate these duties, and eventually file a petition with the probate court to begin the legal ramifications. The attorney will go over any wills and death certificates, and identify any of the debts one may owe postmortem. A key thing to remember is that while a probate attorney is there to guide you, it’s important to have an idea of these things before meeting with them to avoid confusion.
The Legal Probate Process in Florida
Assets left by the decedent are usually distributed through the provisions of their will. They can pay the cost of the probate proceedings, if provided. In cases of intestacy, Florida has specific rules regarding where these assets go, and in most cases it goes to the decedent’s spouse if applicable. But if a personal representative is named, it becomes their responsibility in handling these assets. These assets can be anything from:
- A bank account or investment account in the sole name of the decedent
- A life insurance policy or individual retirement account payable to the decedent’s estate
- Real estate titled in the sole name of the decedent or jointly in the name of a decedent and a tenant in common
How to Avoid Probate in Florida
The easiest way to avoid Probate in Florida is if the decedent provided a trust in their will. This can include an inter-vivos trust, or a testamentary trust, and is given to a person or institution named as the trustee who is responsible for administering this document.
The difference between a trust administration and probate is that a trust administration is not a court-supervised process. As a result, probate is not necessarily required if the decedent had a properly drafted and revised trust. In this case, a trustee takes on the roles of an executor, and must take similar precautions to administer the trust correctly.
Walser & Herman, Elder Law and Probate Attorneys
Founded in 1983, our Florida probate law firm has been providing trust and estate legal services in Palm Beach County for over 30 years. Our goal is to properly guide you through the legal processes regarding probate and trust administrations, and to ensure that all parties involved are given proper care throughout the process. Whether it’s creating wills and trusts, estate planning, or handling the probate process, we are here to ease the pressure of the legal proceedings that follow a difficult loss.
If you have questions about Florida probate law, or if you require an attorney, our team at Walser & Herman Law Firms are here to help in whatever way we can. Please don’t hesitate to contact us for any concerns or inquiries. We pride ourselves on providing timely responses to any and all inquiries, backed by a dedicated, professional, and compassionate staff here to help you and your needs.