Probate is the process of administering the estate of someone who has passed away (who is referred to legally as the “decedent”). Under Florida law, title to a decedent’s property and any outstanding debt held by the decedent is transferred to the decedent’s estate. The estate is a legal entity under Florida law that allows the decedent’s property to be transferred to his or her heirs in accordance with the decedent’s wishes, assuming the decedent had a valid will or trust in place prior to passing. If the decedent died without a will or trust, the estate is considered intestate and the decedent’s property will pass in accordance with Florida Statutes § 732.101 – 732.111, as follows:
- If the decedent is survived by a spouse but no lineal descendants, then the estate will go to the surviving spouse;
- If the decedent is survived by a spouse and lineal descendants who are also lineal descendants of the surviving spouse (i.e. the couples biological or adopted children), then the spouse gets the first $60,000 of the estate and the remainder is split equally between the spouse and the lineal descendants;
- If the decedent is survived by a spouse and lineal descendants, one or more of whom is not a lineal descendant of the surviving spouse, then the estate is split equally between the spouse and the descendants (in this scenario, the spouse is not entitled to the first $60,000 of the estate);
- If the decedent is not survived by a spouse, but has lineal descendants, then the estate goes to the descendants in equal shares;
- If the decedent is not survived by a spouse or lineal descendants, then the statutes set forth a hierarchy of relatives who will become beneficiaries of the estate.
Probate is not always necessary, but often required, particularly if the decedent owned real property such as a home, commercial building or vacant land. Probate may also be required if the decedent held a bank or investment account titled solely in the decedent’s name, which was not transferred to a beneficiary upon the decedent’s death. If you aren’t sure if you need to probate an estate, call us for a free consultation.
Probate is an often-lengthy process that is started by filing a petition with the court. Also, if the decedent died with a will, Florida law requires the will be deposited within 10 days of death.
Wills must be executed in accordance with Florida law. Florida law says any person who is of sound mind and is 18 or more years in age (or an emancipated minor) may make a will. The testator must sign the will or direct someone to sign on his/her behalf if unable, and the will must be signed in the presence of two attesting witnesses.
If wills are not executed properly and in accordance with Florida law, they can be found invalid and will be voided. As a result, the court will view the decedent as having died without a will.
After the decedent’s will and death certificate as well as a petition for administration are filed with the court, the court will appoint a personal representative to oversee the decedent’s estate. Under Florida law, the personal representative is granted a wide range of powers to administer the decedent’s estate and is required to act in a fiduciary role.
The personal representative will gather all the assets of the estate, sell any assets necessary to settle the estate, pay the debts of the estate, distribute the assets in accordance with the decedent’s will or the laws of intestacy, create an accounting of how all the assets were distributed and, finally, close the estate.
Bedy Law provides legal counsel and guidance to executors, beneficiaries and other interested parties in the estate administration process. The probate process can be long and complicated, and having an experienced attorney on your side to guide you through the process makes a difference. Bedy Law can advise executors and handle a wide range of services in the estate administration process, including help with creditors and distribution of assets. If you need help with a probate or have any questions about how to settle an estate, call Bedy Law today for a free consultation.