What Is Probate?

What Is Probate?

You have probably heard of probate. In fact, you may have read about celebrity estates gone bad or tips for avoiding probate altogether. Still, it is a good idea to understand exactly what it entails. Someday, you may be involved in probate for a loved one. Your loved ones may be involved in probating your estate also.

Probate Defined

Florida law defines probate of Will to mean “all steps necessary to establish the validity of a Will and to admit a Will to probate.

So, what is probate, then?

It is the process whereby a Will is declared to be the last wishes of a deceased person. However, when someone dies without a Will, their estate still must go through probate. Most estates are required to be administered through a probate proceeding.

During the probate process, a decedent’s assets and debts are gathered by a personal representative or administrator. Then, any valid claims against the estate are paid, if possible, and remaining property distributed to heirs. There are exceptions to this process whereby spouses or children may elect shares of the estate based on state law. But, generally, the personal representative of the estate deals with assets, debts, and distributions.

Court Proceeding

But there are many court proceedings: civil lawsuits, guardianships, criminal cases, and divorces just to name a few. What makes probate different? Probate is the “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.”

A probate proceeding begins when a deceased person’s Will (if any) is deposited with the probate court, and an application to serve as personal representative of an estate is filed.

As defined by Florida law, the term ‘probate of a Will’ refers to “all the steps necessary to establish the validity of a will and to admit the will to probate.” Once a Will is admitted to probate, the court issues Letters of Administration to the estate’s personal representative.

However, when the decedent did not leave a Will, the estate still goes through probate. An interested person files the application to serve as personal representative of the estate. An individual approved by the court then begins the process of probating the estate.

Typical Probate Timeline

Every probate case is a little different. However, these are just a few of the deadlines that must be met.

  • 10 days: The Will must be deposited with the clerk of court within 10 days after learning the testator has died.
  • 20 days: Objections to the Will must be filed 20 days from service of notice or 3 months from service of notice of administration.
  • 3 months: Creditors must file claims within three months after the notice to creditors is published. Creditor claims are barred if the creditor has not filed a claim within two years after the decedent’s death.
  • 6 months: Interested parties have six months to file an election to take elective share.

What happens during the administration determines when the estate administration terminates.  For example, if disputes arise over the Will or heirs are hard to find, finalizing the estate may take longer than average. Some estates are finished in a few months, while others may take years.

Be Informed

Sometimes, the easiest way to settle an estate is to avoid probate. Talk to an attorney about beneficiary designations, trusts, and titling property. It’s possible to transfer property to your heirs without having them set foot in a courtroom.

Is There Only Way to Probate an Estate in Florida?

Asking the question “what is probate?” may lead to another question: what type of probate do I need? The answer may be one of three different forms of probate.

  • Formal Administration. Courts more closely supervise an estate going through formal administration. This is the most common form of probate administration.
  • Summary Administration. This is an abbreviated probate proceeding available for smaller estates or estates where the decedent has been dead for at least 2 years.
  • Disposition of Property Without Administration. A very small estate that meets certain guidelines may be administered without formal oversight.

Probate can be fairly straightforward in some situations where the assets are minimal and there are no creditors, but often times probate cases last at least 6-12 months.  Issues such as missing heirs, Will contests, creditor claims, extensive assets, and disputes over who will serve as a personal representative can complicate the picture. An experienced Florida probate attorney can help you navigate the probate process.

Don’t Just Ask “What Is Probate?

Ask how it will affect your loved ones. A good estate plan can help avoid some of the pitfalls and frustrations of probate.

Attorney John Mangan is board certified in Wills, Trusts & Estates by the Florida Bar. Please call us at 772-324-9050 or use our Contact Form to set up an appointment. We help clients throughout Florida, including Stuart, Palm City, Hobe Sound, Jupiter, and Port St. Lucie.