What Is Probate?
You have probably heard about the probate process. 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 PROCESS 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 it, 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 the process. Most estates are required to be administered through a court proceeding.
During the 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 a surviving spouse or 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 like a retirement account or real estate. The person who administers the estate also deals with the decedent’s debts and any 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? It 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.”
The 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, 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 the process. 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.
FLORIDA PROBATE PROCESS TIMELINE
One of the most common questions our firm gets is ‘How long is the probate process in Florida.’ This is a common question because no one wants this legal process to drag out, especially after the death of a loved one.
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 ONE 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.
Formal Administration – Probate
Courts more closely supervise an estate going through formal administration. This is the most common form of probate administration.
Summary Administration – Probate
This is an abbreviated proceeding. This is available for smaller estates. It’s also available for 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 oftentimes 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 THE PROBATE PROCESS?
Ask how it will affect your loved ones. A good estate plan can help avoid some of the pitfalls and frustrations of probate.
Law Offices of John Mangan, P.A. Palm City – Stuart, FL
Do you question the need for attorney guidance with so many online resources? Because laws and regulations are complex, and because every person has a lot at risk, more people than ever are seeking professional guidance from an experienced, knowledgeable source. That helps explain the rapid growth of our firm. Whether you happened upon this website by accident or are one of the many referrals we receive from a nearly 15-year collection of satisfied clients, our staff can provide customized estate planning guidance for you. Call us. Our number: 1 (772) 218-0480