The 5 Step Process to Florida Probate(and What To Prepare For)

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probate

If you are new to probate in Florida…

…chances are you have been searching online on trying to get some answers on the process, what to expect, and how long it will take. 

In this post, I will go over… 

So What Is Probate?

Probate according to Webster dictionary is defined as: 

“…the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine.”

Or in. other words…probate is simply to establish the authenticity or validity of (a will).

What Are the Steps in Probate?

Step 1: Filing the Petition

To first begin the probate process…a petition for probate must be filed with the clerk of Florida circuit court in the county where the testator lived, and the will must be admitted to probate. 

Step 2: Recognizing the Executor of the Estate

The Court then recognizes the personal representative of the estate (as established in the will).

If a will is not present (or an executor of the estate is not established), you can request the court to assign you as the executor of the estate. 

In that case, you will be issued Letters of Administration by the court. These give you the power to resolve the estate. 

Step 3: Provide Notice of Probate

The next step as the executor of the estate is…you must then provide notice of probate to all interested parties, including beneficiaries and heirs.

The executor needs to also publish a notice to creditors which notifies them of the probate of the estate. This must specify when creditors must submit their claims.

Step 4: Paying the Estate Debts, Taxes, and Final Expenses

Next, confirm that…

  • The final expenses of the deceased are paid for
  • Any required taxes are paid
  • Any outstanding debts are paid

There is a specific order that outstanding debts and creditors must be paid. If there is not enough of the estate to cover all debts, those that take priority will be paid first. 

Step 5: Transfer Remaining Assets

Once all of that is taken care of…

…the executor of the estate must request the court for permission to transfer the remaining assets of the beneficiaries. 

If the will was not present, the assets must be distributed(as directed by Florida state law dictates). The estate is then finished.

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7 Facts You Should Know about Florida Probate

probate

Whether you are dong this by yourself, or you have a probate attorney…

…keep these facts in mind before your probate court date. 

1. Florida Does Not Recognize Handwritten or Joint Wills

A handwritten or joint will will not be recognized in probate court. 

2. Probate Only Deal with Certain Types of Assets

Probate assets are owned by the deceased solely in their name at the time of their death…

OR…

…assets that are co-owned but that do not have a set provision for the automatic sequence of ownership in the event of death.

3. Florida Probate 3% Legal Fees

In the state of Florida, legal fees for a “Formal Estate Administration” usually are calculated at around 3% of the probate assets. 

Estates that require extraordinary legal work may include additional charges. 

4. Personal Representatives Are Entitled to Payment

As a personal representative for a last will and testament, you are entitled to a 3% fee of the probate estate. 

5. Not Every Asset Will Pass Through Florida Probate

Some example of some assets that are not processed through probate include:

  • Assets in a trust
  • Disposed assets including life insurance policies, payable on death accounts, and retirement accounts
  • Joint-owned property with rights of survivorship passed to the surviving tenants outside the probate process

6. A Certified CPA Can File Taxes for the Deceased

A certified CPA can take care of any unfiled tax returns, file the final tex return of the deceased, and take care of any final tax returns for the estate of the deceased. 

7. It's Your Job to Notify Any Beneficiaries

As a personal representative in the probate process, it is your job to make sure that all beneficiaries mentioned in the last will (and testament) are notified. If you need help, this is where a probate attorney can come into play. They can help you track down beneficiaries, and make them aware. 

probate due date

6 Probate Deadlines to Be Aware of​

  • 10 days after death - Deposit the will
  • 60 days after issuance of Letter's of Administration - File probate inventory
  • OR
    30 days from filing a claim(or amendment of a claim)
    - Personal representative deadline for objecting to a claim
  • 6 months from decedent's death - Opt out of life estate in homestead and take 50% interest as part of the Surviving Spouse Homestead Election
  • 2 years from the date of death(except IRS claims) - Statute of limitations for claims against either an administered or un-administered estate