One of the biggest points of contention after losing a loved one is the administration of the estate. Planning ahead can help protect family members from these hassles and ensure the will-holder’s wishes are carried out as intended.
Our Florida probate lawyers at Luhrsen Goldberg can help families get started on the right foot when estate planning or handling the probate of their loved one’s estate. Most people never think about probate court until they have to, but our estate planning attorneys are here to help grieving families protect their rights and access their inheritance as their relatives intended. Contact our women-owned firm for an initial consultation today to discuss how probate works and what to expect when navigating the probate process.
How Long Does Probate Last In Florida?
For a will in Florida, probate will dictate its validation and execution. It will also certify the will’s legitimacy and ensure that the estate is rightfully distributed. The complexity of an estate will decide the length of a probate case in Florida. Some of the factors that influence this timeline can include:
- Asset location
- Accounting of assets
- Settling of creditor claims
- Distribution of assets to beneficiaries
- Creditor claim settlements
- Obtaining court permission to culminate the probate process
In best-case scenarios, the probate process could conclude in as few as several months, but it is normal for the process to exceed 9 months to 2 years, with an average of 18 months. A probate administration lawyer can help with handling probate to expedite the process. Our Florida probate attorneys will ensure the fastest processing of probate estates as soon as possible. We aim to uphold the wishes of the deceased’s will with complete accuracy.
Understanding Florida Probate
Here is a breakdown of how the probate works in Florida:
Florida Probate Process
The goal of the Florida probate process is to ensure that the legal distribution of the proceeds of a decedent’s assets is made according to their wishes. If the will was not executed properly, or if no will exists, according to state law, the estate will be distributed pursuant to an intestate statutory distribution. The key steps in a Florida probate process include:
- After death, the deceased’s original will is submitted to the clerk of court for the count in which the decedent resided at the time of death.
- The will’s validity must be proven. A will must be signed in the presence of two witnesses to be valid but to be admitted to probate without further evidence, the will must also contain an affidavit signed by the testator, the subscribing witnesses, and a notary. A will containing such formalities is known as “self-proven.” A will that contains the testator’s signature and the signatures of two subscribing witnesses without a self-proving affidavit will require an oath of witness before it is admitted to probate.
- Subject to legal qualifications, a personal representative (also known as an executor in other states) may be nominated in the document.
- With limited exceptions, probate costs, taxes, and debts are to be settled before the distribution of any assets.
- Upon the completion of the distribution of all assets and management of estate debts, the probate concludes, and the personal representative can be discharged.
Can Probate Be Avoided?
A property that does not automatically transfer upon the decedent’s death may be subject to probate. Some assets can avoid probate, such as life insurance policies that have specified a beneficiary or joint bank accounts. A helpful tool that can bypass probate includes trusts.
Role of a Personal Representative (Executor)
A will can nominate a personal representative who manages the decedent’s estate, ensuring the proper distribution of assets and finalization of the probate process.
9 Myths About Florida Estate Plans and Probate
Many people in Florida neglect to engage in estate planning. Around 67% of Americans have no valid will or estate plan. Dying without a will or estate plan is known as dying intestate. When someone dies intestate, the state dictates who will receive their assets.
The state of Florida can choose guardians for minor children if not listed in a will. If unmarried without children, the state of Florida determines which relatives are to inherit the assets. Unfortunately, even if married with children, the surviving spouse and children may not inherit the leftover assets once it goes through Florida probate. There are many myths associated with estate planning, including the following:
Someone Only Has To Think About Estate Planning if They are Wealthy
Even if a large bank account does not exist, there is still likely a life insurance policy, a home, personal possessions, and a vehicle that add up to a large sum. Estate planning is more than just finances. It ensures that finances are taken care of if someone becomes incapacitated, that health care decisions are chosen according to their wishes, and that following death, loved ones are cared for.
People Should Not Think About Estate Planning Until They are Middle-Aged or Elderly
Sadly, being young is not a protection from the bad in this world. Tragedies happen to people of all ages. Healthcare directives and HIPAA authorizations can be useful when legal or financial documents cannot be signed or if minor children are to be considered.
Married People Do Not Need a Will.
In most circumstances, property held by spouses jointly is passed on to the surviving spouse upon the decedent’s death. In some situations, this may not be the case. If a spouse remarries or has children, the decedent’s estate may end up with children not their own.
A Quick Will is Better Than No Will
Assuming you can write your wishes down on a napkin and that will take care of everything is a common misconception. Florida does not recognize wills written in the testator’s (the person writing the will) handwriting, even if signed, without witnesses. For a will to be valid, the testator must sign in front of two witnesses concurrently. Oral wills, or nuncupative wills, are not allowed.
Remember, estate planning is not just about money it is also about people. The assets are being distributed after the decedent’s death, of course, but the will ensures the decedent’s wishes are carried out.
Having a Will Prevents Families From Dealing with Probate
Unfortunately, a will is only a set of instructions used by the probate court to administer an estate. Upon death, a personal representative can petition the court to have a will admitted to probate, which could take up to two years. To prevent having to deal with probate administration, a trust is one option that should be considered.
Parents Must Exclude Their Special Needs Child From Their Will
A special needs child need not be excluded from a Parents will. Parents with special needs children can utilize a variety of supplemental or special needs trusts available to them when drafting an estate plan. This allows the disabled beneficiary to continue receiving the public benefits necessary to support them while allowing a decedent to provide additional needs that exceed the benefits provided by the federal or state government.
People Do Not Necessarily Need Estate Plans Because Their Children Will Do the Right Thing After Their Parent’s Death
As stated above, estate planning is indeed about more than money, it is about people. Unfortunately, anytime that money and people are involved things become complicated very quickly. When more than one child is involved, many stumbling blocks appear without specific instructions in a will or Trust. When considering to leave one child an entire estate with the “understanding” that they are to share with the rest of the children, it is important to understand that the child has no legal obligation to share with anyone.
With a Living Trust, Heirs Can Avoid Estate Taxes
For the majority of people, there will be no estate taxes or very little that must be dealt with, no matter if there is a living trust, a will, or no estate planning done at all. Generally, there is no estate tax for estates worth less than $12.92 million. The vast majority of the population does not have an estate that large that they are dealing with, so no federal estate tax will be owed after their death.
The State of Florida Will Just Seize Assets if People Die Without a Will
If someone dies without a trust, will, or other estate planning documents, the laws of intestacy will be applied by the state of Florida to determine who receives what assets. Surviving spouses and their children are at the top of the list and are likely to inherit the bulk of the deceased’s estate.
If there are no children or surviving spouses, the estate is passed to the next of kin, including parents, siblings, aunts, uncles, nephews, or nieces. In very rare cases when the deceased has absolutely no living relatives, even a third cousin twice removed, their estate could be left to the state of Florida.
Florida Probate FAQ
It is normal for individuals just starting out with their estate plans to have serious concerns about how probate is handled and what will happen to their estate after passing away. It is our goal to empower our clients. For this reason, we have compiled a brief FAQ regarding probate in Florida below. We encourage anyone with additional or specific questions to contact our office for an initial consultation for more information.
Is Hiring a Probate Attorney Expensive and Unnecessary?
While it is possible to plan and prepare an estate plan alone, the more important question is whether an individual should utilize their time, energy, and resources to do so. Unfortunately, there have been hundreds of cases where an estate is made having one small mistake, which leads to several issues upon their death. Unless someone has an extensive background in the legalities of Florida estate planning, there is a high likelihood that a minor mistake will be made or that a crucial item will be left out of the estate.
What is Probate? Why is Probate Necessary?
The process in which the court will oversee an estate’s administration is known as a probate. This process identifies which assets are to be distributed to beneficiaries and the validity of creditor claims (if any). Probate administration is legally necessary for the transfer of property subject to probate to the decedent’s beneficiaries.
Generally, if there are any assets titled solely in the name of a loved one or family member who has recently passed away, it is necessary to have probate. Assets that have Transfer on Death or Payable on Death designations, or are held jointly, are generally not subject to probate. Speaking with a probate attorney is beneficial when deciding if a probate administration is wise or even necessary.
What Does the Probate Process Do?
During the probate process, the court will place a value on the liabilities and assets of a deceased family member or loved one and determine how the assets are distributed and liabilities are paid. During the probate process, beneficiaries will be determined, and a legal transfer of assets will be made to the chosen beneficiaries on behalf of the court after satisfying all remaining liabilities of the estate.
What Assets are Included in Probate?
Any assets titled solely in the decedent’s name are likely subject to probate. If an asset contains a provision providing for automatic succession of ownership at the decedent’s death, it shall not be included as a probate asset.
As an example, a piece of real estate that is held jointly by two tenants and has rights of survivorship or tenants by the entirety (typically when real estate is owned by married couples) would not be included as assets in a probate estate. In addition, in the probate process, any assets held in a revocable trust would not be included.
What are Letters of Administration?
Also known as letters testamentary, letters of administration are issued as part of a formal probate administration. These letters authorize the decedent’s personal representative to begin administering the estate and to have the care and control of all assets subject to probate.
Contact a Probate Lawyer in Florida for Help Today
The probate process overseen by the court distributes an estate after the decedent’s death. Most estates are written to eliminate or minimize the need for probate, as the process can be expensive, complex, and lengthy. When probate is necessary, it is crucial to have it handled by an experienced probate administration attorney.
In the state of Florida, there are generally two types of probate administration, which are formal probate administration and summary administration. It is critical to discuss with a probate administration lawyer which administration is appropriate, given the complexity, value, and assets of the given estate. Contact Luhrsen Goldberg today for a confidential estate planning evaluation using our secure contact form.