As tough as it may be to think about and consider, setting in place a process to handle your assets after you pass is absolutely necessary. For some, that process is probate administration. In Florida, there are two primary forms of probate: formal administration and summary administration. To effectively understand the probate process and the two forms, it’s best to first examine what probate is exactly. The simplest definition is that it is the legal process that outlines what happens to the assets of a person once s(he) has died and how the deceased’s assets are transferred to the beneficiaries, or heirs. Under Florida law it can only apply to the assets that are in the sole name of the decedent, or items that were owned by the person who died. Some examples of approved probate assets are as follows: bank accounts, investment accounts, individual retirement accounts, and real estate in the decedent’s name.
A person either dies:
Testate – with a will. You as the Testator get to choose who gets what property and in what portion. You can also disinherit individuals that you do not want to receive property from your estate. This second point is important, because if the individual you want to disinherit is an individual who would receive under the intestate statute – it becomes imperative for you to have a will so that your wishes and estate can go to those individuals you believe are worthy or deserving of your estate, or part thereof.
Intestate – without a will. The beneficial interest of the people who receive from your estate is set by statute. In this case, your assets aren’t turned over to the state, rather, the state determines who your heirs are, or those who are related to you and specific Florida statutes determine the distribution of your probate assets, with the help of an attorney. Typically the spouse is first in line, then the children and further down the family tree, until all the probate assets are able to be provided to someone within your family.
With a few minor exceptions, the general process for probate administration is the same whether you die testate or intestate. In general, the probate process is as follows, with further explanation below the bullets:
- Any probate proceeding needs to be filed with the Clerk of the Circuit Court and requires a filing fee. In Collier County and Lee County, that fee is $400. The clerk will then create a file number for the estate and maintain a record of all continuing submissions of the probate estate.
- The legal authority for the Personal Representative to handle the affairs of the decedent are based in the Letters of Administration (commonly referred to Letters Testamentary in other states).
- The Personal Representative will require multiple copies of the death certificate, these are sent to various entities and individuals to verify the person has in fact passed.
- An inventory of the estate (real estate, cash, investments, personal property) is documented and filed with the court. This is held confidential and is not part of the “public record”.
- The Personal Representative and Attorney for the Estate collect the assets and pay the debts of the decedent.
- Any property not specifically given to an individual beneficiary is usually sold and liquidated. Sometimes it is necessary to engage the services of an auction house or other professional experienced in the sale of personal property such as collections, art, furniture, etc.
- Finally, the remaining sum is distributed to the beneficiaries, save fees for probate administration itself.
It is important to ensure the Personal Representative is someone who is trusted and privy to the responsibility – if one isn’t selected, the state may determine an appropriate Personal Representative on the decedent’s behalf. A bond (similar to insurance) may be required if the will does not specifically waive the necessity for a bond. This expense can be roughly 5% of the value of the estate. A Judge, upon a Motion to Waive Bond may do so at his/her discretion, reasons include the size of the estate, the expense, the number of beneficiaries and their relation to one another.
Finally: What Does Probate Cost?
- Court Costs – Filing Fee $400
- Public Notice – $100-$400
- Mailing and Postage – Range $25-$200
- Attorney’s Fees – $3,000.00 and Up. The complexity and the size of the estate do not allow a cap on the high-end of what you can expect your estate to pay for attorney’s fees.
- Personal Representative – $0.00 and Up. Some Personal Representatives may choose not to take a fee for their efforts although they are entitled to compensation. They too, are allowed a reasonable fee for their services and it is detailed in Fla. Stat. §733.6171.
*The entire process can take six months or in some cases, a year. There is a monetary and non-monetary cost in the delay giving your loved ones access to your estate via probate. Many of your final expenses may have to be paid out-of-pocket by your loved ones, who may not get repaid by the estate for several weeks or even months placing a potentially large burden on those who may not be able to afford such an expense.