In Florida probate is a court-supervised process that is designed to determine how to transfer the assets of a decedent upon their death. Property subject to Florida probate administration is that owned by a person at death, which does not pass to others by operation of law, contract or designation (such as life insurance policies, retirement accounts and transfer on death bank or brokerage accounts)
Probate administration transfers legal title of property from the estate of the decedent (the person who has died) to his or her proper beneficiaries as determined by a will, if no will by the state laws of intestacy and if there was a surviving spouse they may receive some statutory rights not provided for in the will such as homestead or an elective share.
The term probate means to prove. In the probate administration process the petitioner / personal representative seeks to prove the existence of a valid will or to determine and prove who the heirs are if there is no Will so the property passes by intestate succession.
The first step in a probate administration is appointing a personal representative who will manage the estate administration. In Florida the term is personal representative although in some other states the term is executor for a guy who serves as the personal representative and executrix for a woman who manages the estate administration. The personal representative may be an individual or a company, such as a bank. The personal representative must be a close relative of the decedent as defined by statute or a Florida resident if the personal representatative is an individual. The personal representative may have been nominated by the decedent in the will. If there was no will, the court will usually appoint the surviving spouse or another family member. Florida law provides who has priority by statute. One or more of the relatives with priority can decide to decline to serve or the court may determine either who would be most appropriate to serve and name multiple co personal representatives each of whom had equal priority.
After receiving letters of administration the personal representative is expected to document all of the decedent’s assets. This is done by an inventory which is due for Florida probate estate administrations within 120 days of filing of the Petition for Administration.
The personal representative will also file any necessary tax returns. If the estate is owed any money, the personal representative may need to bring a lawsuit in order to collect it. If the will is contested, or if there is any other dispute over how to distribute the estate assets, the personal representative may have to “defend” the will in a probate proceeding.
During the probate administration process a number of things are achieved. An important aspect probate is transferring title of the decedent?s property to the beneficiaries if the decedent had a will or to their heirs if there is no will.
Another function of probate is to provide for the collection of any taxes due as a result of the death of decedent or on the transfer of his or her property. A final 1040 income tax for the decedent or a 1041 income tax for their estate may be owed. Also a 706 tax return for estate taxes if the assets are more than the exemption amount may need to be filed and if there is not a surviving spouse inheriting the property their may be tax owed starting at 41%. The personal representative is responsible for seeing that this is taken care of and probate assets need to be withheld to assure there is money to pay any taxes that are due or will be due.
The probate administration process also provides an opportunity for payment of outstanding debts and of the estate. Creditors who are known or reasonably known have the greater of 30 days from the date of service or 3 months from the date publication to file claims in the probate estate. Creditors who are unknown have three months from publication. If a creditor does not file within this period they are generally barred and their claim is no longer valid. If there is enough money in the estate to pay the creditor claims and they are not objected to then the claims are generally paid from the estate funds. If there is not sufficient money in the estate to pay the valid claims that are filed then Florida probate law indicates a priority order for who will receive the estate property first and if there is not enough money to pay a particular priority level than that level will be divided pro rata what each person is owed.
Once the legally enforceable debts have been paid and the taxes and other fees that may be needed are held back or paid a distribution to the beneficiaries or heirs can be done. Once the creditor period has run and the distributions have been made and estate fully administered the personal representative can be discharged and the estate closed.