11 Florida Probate Rules and Processes

Sep 3, 2021 | Uncategorized

After death, probate is necessary if you live in Florida. This legal process helps administer the decedent’s estate after death. The reason for probate is that it ensures that all creditors are paid, and the estate is legally distributed to the beneficiaries. Many people do not understand why probate is needed. It is not an arbitrary random process; rather, it is a legal undertaking governed by Florida probate rules and procedures, of which some are listed below.

1. Do I Need a Lawyer for Probate in Florida?

The answer is a resounding yes. In the majority of probate cases, you will need to hire a probate lawyer. This is a requirement of Florida law. Only when the estate is minimal (assets less than $75K) and in those cases where the sole beneficiary is the executor, probate is not required. The lawyers usually advise and guide the administration of the estate. In addition, they will also assist individual beneficiaries or the executor if there are any disputes or concerns regarding the will and assets.

2. Different Types of Probate

There are three types of probate in Florida: summary administration, formal administration, and disposition without administration. The type of probate usually depends on the value of the assets at the time of the decedent’s death. If the decedent has no property, the disposition of personal property without administration is filed.

The most common type of probate is formal administration, where the process involves paying the decedent’s creditors and legally distributing the estate to the beneficiaries. If the decedent’s total property value at the time of death is $75K or less, then summary administration is applied, which is a faster version of formal administration.

3. Are Any Assets Exempt From Probate in Florida?

Yes, exempt assets include the following:

  • Designated beneficiaries (e.g., life insurance policies, retirement accounts)
  • Florida homestead
  • Joint title with rights of survivorship
  • Revocable trusts
  • Tenancy by Entireties
  • Transfer on death

It is the job of the executor to identify and secure assets that are subject to probate.

4. Does One Have to Pay Taxes on Inheritance in Florida?

In general, no. Florida does not tax inheritance because this property is not considered as federal income for tax purposes.

5. What are Florida Probate Rules When No Will is Available?

When a person dies without a will, they leave the estate “intestate.” Probate is still required, but the estate assets are to ensure that there are no creditors. Florida has intestate laws that regulate how the estate should be administered when there is no will. The state will only accept the estate assets if the decedent had no heirs or beneficiaries. In most cases, it is either the spouse and/or children who receive the estate assets.

6. Is There a Time Limit When the Will Has to be Submitted to Probate Court?

Yes, in general, the will should be submitted to probate court within 10 days from the day of the decedent’s death. The will must be submitted to the county where the decedent died. However, this is not an absolute rule, and delays are common. Usually, there are no penalties for delayed filing if there is a valid reason.

7. Who Can Be an Executor of the Estate?

To be an executor, the individual has to meet the following requirements:

  • Be at least 18 years of age.
  • Be a resident of Florida. In some cases, a non-resident may also serve as an executor if that individual is related to the deceased by marriage, adoption, or is a blood relative.
  • Be physically and mentally able to carry out the duties of an executor.
  • Have no prior felony convictions.

8. What are the Duties of an Executor?

The executor has many responsibilities, which include the following:

  • Petition the court to open a probate estate.
  • Identify and secure all assets of the decedent.
  • Identify and issue notice to creditors of the estate. The creditors should also be sent a copy of the death certificate.
  • Provide notice of administration to all potential beneficiaries.
  • Pay the creditors and lien holders.
  • Pay any unpaid taxes.
  • Pay the costs of administering the estate (e.g., lawyers, accountants, etc.)
  • Sell assets as direct by the will
  • Close the estate

9. Can One Avoid Probate in Florida?

Yes, one can avoid probate in Florida. One can do this by setting up a living trust and including all the assets. After the death of the individual, the beneficiary named in the trust will automatically receive the assets. Trusts are never part of the probate process. Another practical option is to include the beneficiary’s name in your assets, including retirement accounts and insurance policies. Finally, if you have a bank account, make sure you have your spouse’s name or your children’s name on the account. Joint accounts are not part of the probate process.

10. Does the Executor Get Paid for Administering the Estate?

Yes, the probate court does have a scheduled fee to compensate the executor for the work. The probate process is long and requires many hours. In addition, there is an enormous amount of paperwork and documentation required. Executor (or personal representative) fees are paid using the following schedule:

  1. 3% of the first million. For example, if the estate is worth $500,000, the representative is entitled to $15,000.
  2. 2.5% for an amount more than $1 million up to $5 million
  3. 2% for an amount between $5-$10 million
  4. 1.5% for amounts more than $10 million

11. How Long is the Probate Process?

The probate process can be anywhere from 6-12 months (for a simple case) to a couple of years (for a complex and litigated case). The average timeframe for normal probate processes is usually around 8 months.

The above are just a few Florida probate rules and processes. If you want to know more about probate or making a will or Florida probate rules, no will contact a knowledgeable probate lawyer. Contact Elder Law.

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