Frequently asked questions
What Is Probate?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).
There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.
There is also a non-court-supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances.
What Is A Will?
A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.
If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of those who will receive the decedent’s probate assets, as well as who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.
Who Is Involved In TheProbate Process?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:
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Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.
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Circuit court judge.
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Personal representative (or executor).
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Attorney providing legal advice to the personal representative throughout the probate process.
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Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
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Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe and, sometimes, federal gift, estate or generation-skipping transfer tax matters.
What Is A Personal Representative, And What Does The Personal Representative Do?
The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
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Identify, gather, value and safeguard the decedent’s probate assets.
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Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
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Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
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Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
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Object to improper claims, and defend suits brought on such claims.
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Pay valid claims.
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File tax returns and pay any taxes properly due.
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Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
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Pay expenses of administering the probate estate.
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Pay statutory amounts to the decedent’s surviving spouse or family.
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Distribute probate assets to beneficiaries.
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Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
What Are The Estate's Obligation to Estate Creditors?
One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.
The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.
How Long Does Probate Take?
It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.
If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative. This period can be extended if necessary.
If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.
