Articles Posted in Probate

Administration – Probate or Trust: The process of handling the affairs of a deceased person’s estate or a trust. Florida Probate and Trust Administration

Ancillary Administration: probate proceedings in another state. This is usually necessary when the deceased person owned real estate in their sole name in a state other than his or her home state. It could be avoided by putting the property into a trust or passing the property so the beneficiary (beneficiaries have) has a remainder interest in which the property will pass to them by operation of law upon the death of the decedent. With limited exceptions such as requiring documents from the decedents probate in their home state ancillary probate in Florida is generally treated according to the same rules as if the decedent were domiciled in Florida.

Formal Administration: a proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by Chapter 733 of Florida statutes.

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.
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Within one to four months (depending on the particular state) after the executor has been appointed, he is required by law to file a “complete” inventory of the estate’s assets. A Florida Probate Inventory is required to be filed within 120 days. The inventory is submitted to the court and, like all other papers submitted to the court, becomes a matter of “public record” (available to anyone who wants to look at it). Briefly, there are two reasons for the filing of the inventory. First, to indicate to the court the items of property for which the executor will later “account” to the court (tell the court in detail what he did with all these items when the estate is settled), and to let the beneficiaries, creditors, and all other interested parties know just what is included in the deceased’s probate estate. If the executor delays or refuses to file an inventory, any interested party may ask the court to order him to file one, although if there are no disputes or contests, executors often file their inventories late.

The inventory will include any type of property (stock, bonds, real estate, furnishings, jewelry, copyrights, claims against others, etc.) that belonged to the deceased at the time of his death. Normally, this only includes property that stood in the deceased’s name alone, but could very well also list property that was being held by someone else, such as property, for example, that the executor believed should be a part of the deceased’s probate estate. Otherwise, nonprobate property, such as jointly held property, life insurance or retirement plan benefits payable to a named beneficiary, or assets in a living trust, will not be mentioned in the probate inventory.
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Notice to Heirs and Interested Parties — Time to Contest

In most states including Florida, after the petition for probate is filed, the Probate Court will order that notice of the petition be given to the heirs and other “interested” parties (those who may not be heirs but who may be named in the will) and, in some cases, that “publication” must be made. Publication is the placing of legal notice in the local newspaper to the effect that John Smith, a resident of Jacksonville, Florida, has died and a petition has been submitted to the court asking that his wife Jane be appointed as the executrix (or administratrix if there was no will) of his estate. The publication will also suggest that if you wish to object to the allowance of this petition, you or your attorney should file an appearance on or before a certain date. In those states that require notice, this designated date (sometimes called the “return date”) is very important because if no objections to the petition are received by that date, the court will allow the petition. This does not mean if you miss the date or later discover that you should have objected that you cannot, but an objection filed after the date designated by the court as the “deadline” will be accepted by the court only if there was a good reason for the failure to file the objection within the allowed time. If adequate notice is not given as required by the state’s laws, no probate may be allowed.

About a third of our states take the reverse approach and immediately allow the petition for probate and appointment of executor as soon as the will is filed, without notice to the beneficiaries. This does not mean, however, that no one can object. In fact, in those states that allow the will without notice, a person who wishes to contest the will or the appointment of an executor often has a much longer period within which to do so-usually until the estate is settled and the executor is discharged by the court.