Guiding You Through The Probate Process

Probate is something nearly everyone has heard about but few understand. For those who have gone through probate, many will say it was an experience they hope to never repeat. Unfortunately, families and loved ones cannot always avoid the probate process in Florida.

Florida’s probate system is complex. You will need an attorney who has years of experience in probate as well as the skills and knowledge to complete the process in a timely and cost-effective manner. At Marshall Law, I focus my practice on this area of the law, meaning that you will have a lawyer with years of experience and knowledge by your side to help streamline the process.

Explaining The Probate Process

Probate is the judicial process of transferring the assets of a deceased person (“decedent”) to their heirs or beneficiaries (“heirs” are those who inherit if the decedent did not have a Will, whereas “beneficiaries” are those who inherit because the Decedent named them in the Decedent’s Will). It is important to note that if a decedent dies without a will, the Florida Probate Code (state law) will determine who the heirs are and will receive the decedent’s assets.

During the probate process, the court will determine if the decedent’s Will is valid (if they have one) and oversee the reporting and distribution of the decedent’s assets. The probate process also includes identifying and possibly paying creditors the decedent owed money to at the time they died.

The Different Types Of Probate In Florida

The amount of time required to complete probate depends largely on the type of probate case required. In Florida, there are multiple kinds of probate cases available that vary depending on the circumstances at hand.

The types of probate include:

• Distribution without administration: This process reimburses the party who paid the final medical bills or funeral expenses. However, heirs or beneficiaries can only use this process if the decedent does not have any real estate, the total expenses are less in value than the decedent’s assets and all personal property is exempt from creditors’ claims.
• Summary probate: If someone has been dead for over two years or the assets of the estate are less than $75,000 (excluding the homestead property), then Summary Probate can be used. The process for Summary Probate can take anywhere from 2 – 5 months. The one drawback to Summary Probate is that all assets, including bank account values and account numbers, must be identified. If not all information is known, then Summary Probate cannot be used.
• Formal probate: If we cannot use “Distribution without Administration” or “Summary Probate”, then Formal Probate is required. In Formal Probate a personal representative is appointed by the court, after which the personal representative and their attorney collect information on assets, notify heirs or beneficiaries probate is open, identify and notify creditors, collect and report on asset values, and eventually distribute assets after paying valid creditor claims. Formal Probate averages 8 – 9 months to complete, although some estates can take longer due to issues unique to that case.
• Ancillary probate: Ancillary Probate is used when a nonresident of Florida dies owning assets in Florida (e.g., a vacation home or rental property). Ancillary Probate can take the form of either Summary Probate or Formal Probate, but requires filing with the Florida court legal pleadings issued by a court in the decedent’s home state.

At Marshall Law, I can help you determine what form of probate is required and guide you through the probate process. Nonetheless, if you are concerned about probate and want your family to avoid it, then we should meet to discuss the estate planning options available to you; see the Estate Planning section of this website.

Frequently Asked Questions About Florida Probate

My clients often have many similar concerns and questions. Here are some of the questions I hear most often:

What is probate?

Probate is the legal process of administering the estate of a deceased person. It involves resolving all claims against the estate and distributing the decedent’s property under the terms of their will or according to Florida’s law of intestate succession. During probate, a court oversees the process to ensure that the deceased person’s debts are paid and that their property is correctly transferred to their beneficiaries (if they had a will and named them) or heirs (if there was no will and state law is used).

When is probate needed in Florida?

Probate is generally required whenever someone dies owning assets solely in their own name, whether they leave behind a will or not. Probate may be avoided through careful estate planning that uses any number of common strategies, such as the use of trusts, joint tenancies and payable-upon-death beneficiary designations. That is one of the many benefits of consulting a probate attorney like me to discuss your options.

If the decedent’s estate has less than $75,000 in total value, the estate may be eligible for summary administration of probate, which is a simpler, truncated process.

Do you need a lawyer to probate an estate in Florida?

Florida law does not require the assistance of an attorney for summary probate procedures, but a lawyer is required for all other probate procedures. Even with summary probate, however, it is wise to have the assistance of an attorney.

The probate process is complicated, and mistakes can be financially and emotionally devastating or lead to significant delays that affect the beneficiaries or heirs. The executor or the estate’s appointed personal representative can also be held responsible for those mistakes, so having legal guidance is merely protective.

Let’s Discuss Your Case

Mourning the loss of a loved one is an incredibly difficult time to go through. The idea of facing the probate process can seem daunting and overwhelming. At Marshall Law, I will guide you through every step of the probate process and provide the support you need. To schedule a consultation, call my Villages office at 352-619-0744 or complete my online contact form.