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Florida’s Probate Processes

The Florida Probate Administration is court supervised process that is dedicated to marshalling (gathering) a deceased person’s (decedent’s) assets, and debts, appointing a Personal Representative (Also referred to as an Executor or Executrix) to manage the administration of the estate assets, paying verified debts/creditors, and then finally distributing the remaining assets.

PROBATE DEFINED – TESTATE OR INTESTATE

Probate administration transfers legal title of property owned by the decedent from the estate of the decedent to his or her proper beneficiaries as determined by a Last Will and Testament (A person dies with a Will, dies Testate). If a person dies without a Will dies Intestate. When a person dies without a Last Will and Testament Florida laws of intestate succession outline how assets are to be distributed. If there is a surviving spouse, a surviving spouse has certain automatic rights to receive a part of the decedent’s assets referred to as Florida Homestead law and Florida Spousal Elective Share Statute.

PROPERTY SUBJECT TO PROBATE

Property subject to probate administration are only those assets owned in the decedent’s name alone which does not pass to others by operation of law. Jointly held property, paid on death bank accounts, life insurance policies designating beneficiaries other than the estate, retirement accounts that name a beneficiary and brokerage accounts naming beneficiaries other than the estate.

PERSONAL REPRESENTATIVE OF THE ESTATE

Florida probate law allows an individual or company may serve as a Personal Representative. If the Personal Representative is an individual, Florida probate law dictates that the individual, if not a Florida resident must be a lineal descendant of the deceased person (spouse, child, grandchild, mother, father, grandparents, aunts uncles, niece) or a Florida resident if the personal representative is an individual. Florida Probate law defines who has priority in being appointed as Personal Representative.

The Personal Representative files and inventory of estate assets sees that all necessary tax returns are filed. A final IRS Form 1040 income tax return for the decedent or an IRS Form 1041 estate tax return, and an IRS Form 706 may have to be filed for estate’s valued in excess of the Federal Estate tax exemption amount on the date of the deceased person’s death ($2,000,000 in 2008).

CREDITORS

The probate administration process also addresses verification and payment of outstanding debts of the deceased person and of the estate. Creditors who are known or reasonably known must file a claim against the estate. The creditors have 3 months after the first date the Personal Representative publishes a notice to creditors in the County where the deceased person lived. If a creditor does not file a claim in the probate court within that time period that creditor’s claim is not verified, and the debt is barred (the debt is no longer considered valid or enforceable against the estate). If a claim’s validity or accuracy filed in the probate court is questioned by the Personal Representative, the Personal Representative can file an objection to that claim. This requires the creditor to prove the debt or file a lawsuit to collect on that debt. If there is enough money in the estate to pay all of the valid creditor claims filed in the probate court and the claims are not objected to by the Personal Representative, these valid claims are paid from the remaining estate assets available after legal fees, probate administration costs, funeral costs, medical costs of last illness, and personal representative fees are paid. If there is not sufficient money in the estate to pay those expenses outlined in the previous sentence and all of the valid claims filed, Florida probate law defines a priority order for which creditors will receive the remaining estate property first.

Once the legally enforceable debts have been paid and the taxes and other fees paid, then the net remaining estate assets are distribution to the beneficiaries or heirs of the deceased person.

FINAL ACCOUNTING AND DISTRIBUTION OF ASSETS

As part of the Florida probate closing process, the Personal Representative prepares a final accounting, petition for discharge and petition for distribution is typically completed and served on all interested parties. Florida law indicates a Probate must be closed within 12 months of the estate being opened by the court.

The Florida Probate process outlined above is for an uncontested Florida Probate Estate Administration matter. The Florida probate process can be delayed when there is a Will Contest or objection to appointment of the Personal Representative. This would require Florida Probate Litigation subject to all the Florida Rules of Civil Procedure and discovery. A Florida probate Litigator would be required to assist with contested litigation issues related to contested Wills and probates.


Gregory G. Glenn, Esq. is a Certified Elder Law Attorney by the National Elder Law Foundation. He has practiced elder law since 1995. Prior to law school Mr. Glenn worked as a management consultant at the Big Eight accounting firm of Coopers & Lybrand, CPA’s and also at Dunn & Roth, CPA’s as a staff accountant. He has his law degree from MSU and completed his legal studies at the University of Miami School of law. His focus in elder law is on estate planning for the over 65, disability planning, probate, and Medicaid eligibility planning. His office is in Boynton Beach, Florida.