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 pay the probate proceeding’s cost, the decedent’s funeral expenses, then the decedent’s outstanding debts. The remainder of the assets is distributed to the decedent’s beneficiaries. You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. You can find the rules governing Florida probate proceedings 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 ARE PROBATE ASSETS?

Probate administration applies only to probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be probate assets may include:

• A bank account or investment account in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a probate asset.
• A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.
• Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is a probate asset (unless it is homestead property). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.  Also, property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative.

WHY IS PROBATE NECESSARY?

Probate may be necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law.  Some assets do not require a probate proceeding to transfer ownership.  You should contact a probate attorney to provide specific guidance.

Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

What is a Will?

A Will is a writing, signed by the decedent and witnesses, that meets Florida law requirements. 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.

WHAT HAPPENS IF THERE IS NO WILL?

Someone who dies without a valid Will dies “intestate.” Even if the decedent dies intestate, the probate assets are rarely turned over to the state of Florida. The state would take the decedent’s assets only if the decedent had no heirs.

If the decedent died intestate, a couple of examples of how the decedent’s probate assets will be distributed to the decedent’s heirs are as follows: (found in Part I, Chapter 732 of Florida Statutes):

• Suppose the decedent was survived by a spouse but left no living descendants. In that case, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents, and more remote descendants.
• Suppose the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse). The surviving spouse has no additional living descendants (who are not a descendant of the decedent). In that case, the surviving spouse receives all of the decedent’s probate estate.
• Suppose the decedent was not married at the time of death but was survived by one or more descendants. In that case, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if that child has surviving descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the deceased child.
• Suppose the decedent was not married at the time of death and had no living descendants. In that case, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
• Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

There are certain exceptions for homestead property, some personal property, among other exceptions to the distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws.

For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if a spouse and descendants survived the decedent, the surviving spouse takes a life estate in the property.  The descendants receive the decedent’s homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within six months of the decedent’s death to receive an undivided one-half interest in the homestead property instead of the life estate provided specific procedures are timely followed.

Who is Involved in the Probate 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:

• Clerk of the circuit court in the county of the decedent’s domicile at the time of the decedent’s death.
• Circuit court judge.
• Personal representative (also known as an executor).
• Attorney providing legal advice and services to the personal representative throughout the probate process.
• Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
• 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.

WHERE DO YOU FILE PROBATE PAPERS?

The custodian of a Will must deposit the original copy of the Will with the clerk of the Court having the venue of the decedent’s estate within 10 days of receiving information that the testator is dead. (S. 732.901, Florida Statutes.) There is no fee to deposit the Will with the clerk of Court. However, a filing fee must be paid to the clerk upon opening a probate matter. The clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

In the interest of protecting the decedent’s beneficiaries’ privacy, any documents containing financial information about the decedent’s probate estate are not available for public inspection.

WHO SUPERVISES THE PROBATE ADMINISTRATION?

A circuit court judge presides over probate proceedings.

The judge will consider evidence to confirm the beneficiaries’ identities or decedent’s heirs as those who will receive the decedent’s probate estate.

Suppose the decedent had a Will that nominated a personal representative. In that case, the judge will also decide whether the person or institution appointed is qualified to serve in that position. Suppose the nominated personal representative meets the statutory qualifications. In that case, the judge will issue “Letters of Administration,” also referred to simply as “Letters.” These “Letters” are evidence of the personal representative’s authority to administer the decedent’s probate estate.

Suppose any questions or disputes arise while administering the decedent’s probate estate. In that case, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written directive called an “Order.”

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. The term “personal representative” is used in Florida instead of such terms as “executor, executrix, administrator, and administratrix.” The personal representative has a legal duty to administer the probate estate according to Florida law. The personal representative must:

• Identify, gather, value, and safeguard the decedent’s probate assets.
• Publish a “Notice to Creditors” in a local newspaper to notice potential claimants to file claims in the manner required by law.
• Serve a “Notice of Administration” to provide information about the probate estate administration and procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
• 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.
• Object to improper claims, and defend suits brought on such claims.
• Pay valid claims.
• File tax returns and pay any taxes properly due.
• Employ professionals to assist in administering the probate estate, for example, attorneys, certified public accountants, appraisers, and investment advisers.
• Pay expenses of administering the probate estate.
• Pay statutory amounts to the decedent’s surviving spouse or family.
• Distribute probate assets to beneficiaries.
• Close the probate estate.

Suppose the personal representative mismanages the decedent’s probate estate. In that case, the personal representative may be liable to the beneficiaries for any harm they may suffer.

WHO CAN BE A PERSONAL REPRESENTATIVE?

The personal representative can be an individual or a bank or trust company, subject to certain restrictions. To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida and is not closely related to the decedent cannot serve as a personal representative.

Individuals are not qualified to act as a personal representative if they are either younger than 18, mentally or physically unable to perform the duties, or have been convicted of a felony.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.

WHOM WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?

If the decedent had a valid Will, the judge will appoint the person or institution named by the decedent in that Will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.

If the decedent did not have a valid Will, the surviving spouse has the first right to be appointed by the judge to serve as a personal representative. If the decedent was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.

WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.

The attorney for the personal representative advises the personal representative on the rights and duties under the law and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

A provision in a Will mandating that a particular attorney or firm be employed as the attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.

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 IS THE INTERNAL REVENUE SERVICE (IRS) INVOLVED?

The decedent’s death has two significant tax consequences: It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”

The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

• The decedent’s final Form 1040, U.S. Individual Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
• One or more Forms 1041, U.S. Income Tax Return for Estates and Trusts, reporting the estate’s taxable income.
• Form 709, U.S. Gift Tax Return(s), reporting gifts made by the decedent prior to death.
• Form 706, U.S. Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative also may be required to file other returns not specifically mentioned here.

The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate and not from the personal representative’s own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

The estate will not have any tax filing or payment obligations to the state of Florida; however, if the decedent owed Florida intangibles taxes for any year before the repeal of the intangibles tax as of Jan. 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s Will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse also may have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30 percent of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children also may have the right to a family allowance to provide them with funds before the final distribution of the estate assets and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married or had children after the date of the decedent’s last Will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney.

WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES HAVE IN THE DECEDENT’S PROBATE ESTATE?

Except as provided in the immediately preceding section, a Florida resident has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift of, for example, $1.00.

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.

HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?

The personal representative, the attorney, and other professionals (such as appraisers and accountants) are entitled to receive reasonable compensation. The personal representative’s compensation is usually determined in one of five ways:

• As set forth in the Will.
• As set forth in a contract between the personal representative and the decedent.
• As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation.
• The amount is presumed to be reasonable as calculated under Florida law if the amount is not objected to by any of the beneficiaries.
• As determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways:

• As agreed among the attorney, the personal representative, and those who bear the impact of the fee.
• The amount presumed to be reasonable calculated under Florida law if the amount is not objected to by any of the beneficiaries.
• As determined by the judge.

WHAT ARE ALTERNATIVES TO FORMAL ADMINISTRATION AVAILABLE?

Florida law provides for several alternates, abbreviated probate procedures other than the formal administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property, which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration may remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Another alternative to the formal administration process is “Disposition Without Administration.” This is available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) the cost of preferred funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.

If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee might be required to pay expenses of administration of the decedent’s probate estate, enforceable claims of the decedent’s creditors and any federal estate taxes payable from the trust assets. The trustee of such a trust is always required to file a “Notice of Trust” with the clerk of the Court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks that must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of the gross estate for purposes of determining federal estate tax liability.

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