What is the probate process?
Updated: Aug 30
The Florida probate process is a court process that involves administering the property of an individual after that individual’s death. That includes authenticating the deceased’s last Will and Testament, locating the deceased’s assets, paying the taxes and bills the deceased’s estate owes and distributing the remaining assets to heirs or beneficiaries.
In a situation where there is a Will, the executor named in the Will has the responsibility of moving the Will through probate.
Important Probate Terms
To really understand the probate process, you need to know the most common terminology used during this process. These words include:
Executor: The person named in the Will, who is in charge of handling all of the decedent’s remaining financial obligations, such as paying taxes, paying creditors, and distributing estate assets to heirs.
Testator: The person who makes a Will.
Decedent: The deceased person whose estate is going through probate.
Administrator: an executor appointed by the court in a situation where there is no Will.
Intestate: Means dying without a legal Will.
Intestacy: The condition of an estate that belongs to a person who died without a Will.
Letters testamentary: A document issued by a probate court that permits the executor to start carrying out the Will.
Notice of probate: A notice that is submitted to heirs and beneficiaries by the executor informing them that their name is listed in the Will.
Notice to creditors: A public notice published in newspapers by the estate’s executor.
You may also encounter terms, such as summary probate or summary administration, or small estate affidavit when processes used to shorten the probate process are discussed.
It is the testator’s responsibility to move the Will through the probate process. Executors should pursue the following probate steps. It should be pointed out that smaller estates may not need to go through a regular probate process. In some instances, even if an estate contains valuable assets, it may still qualify for a shorter version of the probate procedure.
Step 1: Filing a Petition with the Probate Court
If there is a Will, the executor files the petition for probate to start the process of “proving” the Will. Then the executor must file a notice of probate that lists creditors, relatives, and other beneficiaries mentioned in the Will and inform them that a petition has been filed. A notice of petition or probate must also be published in a newspaper.
In case there is no Will, a relative or family member of the decedent can file a petition seeking administration of the estate. The person filing the petition in this situation is actually asking the court to appoint them as the estate’s administrator or executor.
Step 2: Conduct an Inventory of the Estate and Identify Debts
Conducting an inventory of the estate is done to determine the net worth of the deceased’s estate. The executor, with the help of a lawyer and other experts, must do an inventory and valuation of property, such as mutual funds, real estate, vehicles, bank accounts, and other assets. After completing the inventory, the executor must file it with the court.
The executor or personal representative needs to keep a record of all the fiduciary steps they have taken before distributing the remaining assets. These final records must reflect the payments made to creditors, attorney fees, probate fees, and executor fees.
Step 3: Paying Decedent’s Debt
The executor will need to keep in mind all the possible debts incurred by the decedent. Besides any outstanding mortgages or loans, as well as credit card balances and utility bills not yet paid, a final tax return needs to be prepared and any taxes due must be paid.
Funeral expenses, if any outstanding bills remain, must be paid. If there is not enough available cash or hand to pay the outstanding charges, the executor will have to sell some of the assets to pay the creditors.
Step 4: Distribute assets and close the estate
The final step is for the executor to distribute the remaining assets to heirs or beneficiaries according to directions contained in the Will. After this, the executor needs to file a petition that discharges them from their position as executor of the decedent’s estate.
Ultimately, the Florida probate process can take months, or perhaps even years, depending on the size of the estate and the complexity of all the details involved. The knowledgeable attornies at Elder Law can be an invaluable resource that can help navigate the probate steps smoothly. Contact our West Palm Beach probate attorneys today.