What is probate?
Probate is a court
supervised process of distributing property as directed in a will or
in accordance with the law if no will exists. Since there is court
supervision of the entire process, the heirs/beneficiaries can be
assured of a full and fair valuation and distribution of the estate.
There are two primary types of probate administration utilized in
Florida, the summary administration and the formal administration.
Which type will be required is determined by the value of the estate,
minus certain excluded assets. Formal estate administration is much
more complicated, and therefore requires considerably more cost, in
both time and money, to complete.
When is probate
necessary?
Probate is
necessary whenever a deceased person leaves titled assets in their
name alone. The main function of probate is to transfer title of the
decedent's property to his or her heirs and/or beneficiaries. Probate
also makes sure that outstanding debts and taxes of the estate are
taken care of properly before the final distribution of assets to the
rightful heirs or beneficiaries.
Where does the
probate of a will take place?
A will is probated
in the Court of the county and state where the decedent lived at the
time of their death. If the decedent owned any real property in
another state, another probate proceeding may be required in that
state and county.
Who is responsible
for handling the probate?
The Personal
Representative ("PR," often called "Executor" in some other states) is
appointed as part of the probate proceeding and has the responsibility
for managing the estate through the proceeding. The Personal
Representative has many responsibilities including, but not limited
to, making a list of all the assets and debts of the estate and
carrying out the directives of the will to the best of his or her
ability.
Who can be a
personal representative?
A personal
representative can be any family member, or an individual who is a
Florida resident.
Does a personal
representative get paid?
Yes. Personal
Representatives are typically entitled to a fee of about 3% of the
probate estate for their work. However, when the PR is a family
member or close friend of the decedent, they will often waive payment
of the fee, especially if they will also inherit assets under the
will. Also, reimbursement is available for any out-of-pocket expenses
incurred due to handling the estate.
What is the
downside to being a Personal Representative?
An individual who
does not fulfill his or her duty is personally liable for damages
caused in the administration of the estate.
Liability may
arise from selling an asset without the authority to do so, or at an
inappropriate price; improperly managing the assets of the estate;
neglecting to file tax returns on time; failing to collect claims and
moneys due the estate; distributing property to the wrong
beneficiaries, etc.
What if there is
no will?
If a person dies
without a will, it is called dying "intestate." The probate court
will appoint a personal representative and the remaining estate assets
will be distributed in accordance with state law, after creditors and
taxes have been paid.
This material is
for informational purposes only and should not be construed as legal
advice. Florida law requires that virtually all estates have a
licensed Florida attorney assist with the estate administration.
Our firm is experienced in all facets of both summary and formal
estate administration. Please let us know if we can assist you with
your probate needs.
