Probate Attorneys | The Law Office of Nicole M. Stockmar, P.A.

Probate Attorneys In Longwood, FL

Probate is the legal process in which an estate gets settled under the supervision of the court. There are various ways an estate can be probated, which include summary administration, formal administration, and the distribution of estate assets without the need for court supervision.

An estate often needs to be probated when there are assets and monies existing in your estate that have not been appointed a beneficiary. If your loved ones left behind various bank accounts and retirement accounts only in their name, with no appointed beneficiary, these assets need to be probated to distribute the monies in the account.

The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed.

Probate can be a long and arduous process during an already difficult time. For help navigating the probate process, families can rely on the services of our experienced estate planning attorney. Contact The Law Office of Nicole M. Stockmar, P.A. today to request a free consultation with our knowledgeable estate planning lawyer!

What Does Intestate & Testate Mean?

Decedent Passes With A Valid Last Will & Testament – Testate

When an individual passes with a Last Will & Testament, he or she will address in their Will who they wanted to serve as personal representative to oversee the distribution of the deceased individual’s estate should a probate action be required. The decedent’s Last Will & Testament generally outlines the percentage, share, or tangible assets to be distributed to each named beneficiary. The decedent’s will can outline specific wishes such as funeral arrangements or donations to charity. The personal representative signs an oath acknowledging their duty of Personal Representative and stating they will carry out the decedent’s wishes outlined by the Will.

Decedent Passes Without A Valid Last Will & Testament – Intestate

If the decedent passes without a will and there are assets that need to be probated for them to be distributed to the decedent’s heirs, the same process will apply, however, the assets will be distributed according to Florida Statute 732.103. This law ensures the fair distributions of assets to your closest relatives under the “intestate succession” law. See the table below for a quick summary.

Upon your passing, if you have:	Assets go to:
Spouse but no descendants	Spouse inherits everything
Children but no spouse	Children inherit everything
One or more descendants, all of whom are also descendants of the spouse, and the surviving spouse has no other descendants	Spouse inherits everything
One or more descendants who are not lineal descendants of the your spouse	Spouse in ½ of your estate Your descendants inherit ½ of your estate
One or more descendants who are also descendants of the spouse, and the spouse has descendants from another relationship	Spouse in ½ of your estate Your descendants inherit ½ of your estate
Parents but no spouse or descendants	Parents inherit everything
Siblings but no spouse, descendants, or parents	Siblings inherit everything

What Assets Are Subject To Probate?

Not all assets are subject to probate. Some assets transfer automatically at the death of an owner, with no probate required. The most common kinds of assets that pass without probate are listed below.

Joint Tenancy Assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called the “right of survivorship.” For example, if a house is owned this way, “Jane Sage and John Sage, as joint tenants,” and Jane dies, John owns the entire house.
Tenancy By The Entirety Or Community Property With Right Of Survivorship– these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant but are only available to married couples.
Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
Payable On Death Accounts/Transfer On Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.

If a decedent owned a pay-on-death account or holds assets outlined above, upon their passing, the beneficiary acts as the surviving owner and the assets will automatically be transferred to the named beneficiary. Assets held in this fashion will override a Last Will & Testament and will not be distributed in accordance to the Will but automatically pass to the surviving owner. It is important to hire a knowledgeable probate lawyer to help identify the assets that may be subject to the Will and those that may not.

Identifying Which Administration Is Right For The Decedent’s Estate

Probate is a court-supervised process for gathering the assets of a deceased person, paying the debts of the decedent, and distributing the assets to the decedent’s heirs according to their Last Will & Testament or intestate succession. There are two types of probate administration under Florida law, being formal administration and summary administration, in addition to non-court supervised administration proceedings called “Disposition of Personal Property without Administration.”It is imperative to speak to a knowledgeable probate attorney when the estate of a loved one needs to be probated. Factors such as the estimated value of the estate and the type of authority the personal representative will need to gather information and take possession of certain estate assets will determine what type of probate administration will need to be filed.

Summary Administration

Summary administration is a simplified probate process generally used for smaller estates with no creditor claims. Florida summary administration usually requires less time and expense.

Requirement For Filing For Summary Administration

Summary administration can only be used when the total value of the decedent’s assets subject to probate is $75,000 or less, or when the decedent has been dead for more than two years.

Even if the estate exceeds the $75,000, it may still qualify for summary administration if the decedent has been dead for more than two years. Florida has a two-year nonclaim provision that effectively bars any creditor claims that are not brought within the two years after the decedent’s death.

If the decedent’s estate qualifies for summary administration, this shorted proceeding may still be unavailable if the decedent specifically directs formal probate in their last will and testament.

Advantages Of Filing For Summary Administration

Summary administration generally takes less time and expense compared to formal administration for the following reasons.

A Personal Representative Does Not Need To Be Appointed
Creditors Do Not Have To Be Notified
There Is No Three Month Creditor Claim Period
Lower Attorney Fees And No Personal Representative Fees

Filing A Summary Administration

A Florida summary administration starts by filing a petition with the court in the county the decedent was domiciled. The petition may be filed by any beneficiary or by a person named as a personal representative in the decedent’s will.

If the estate qualifies for summary administration, a petition will be filed showing that the estate is eligible for summary administration, provide a list of assets and their values, the estate’s debts, and the proposed distribution of the assets.

Creditor Claims On Summary Administration

Florida has a two-year nonclaim provision that effectively bars any creditor claims that are not brought within the two years after the decedent’s death. If the decedent has not been dead for two years, creditor claims must be addressed. Florida law states the petitioner must “make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors, serve a copy of the petition on those creditors, and make provisions for payment for those creditors to the extent that assets are available.”

Formal Administration

Formal administration is the most common form of probate in Florida. If the estate does not qualify for summary administration, the estate must be formally administered; however, any estate is eligible for formal administration.

Administration begins when the personal representative nominated by the will or an interested person qualified under Florida Statute asks the court to be appointed the personal representative.

Qualification of a personal representative are as follows:
Must Be At Least 18 Years Old
Mentally & Physically Able To Perform The Duties
Have Not Been Convicted Of A Felony
Have Not Been Convicted Of Abuse, Neglect, Or Exploitation Of An Elderly Person Or Disabled Adult
Must Be A Florida Resident Or, Regardless Of Residence, A Spouse, Sibling, Parent, Child, Or Other Close Relative Of The Decedent

Disadvantages of Choosing a Formal Administration

Formal administration is a longer proceeding compared to summary administration and generally costs more in expenses due to the requirement of publishing a notice to creditors and the additional work required to close out the estate.

Benefits Of Choosing Formal Administration

Formal administration gives the personal representative added authority through “Letters of Administration” to settle the estate. With these “letters,” the personal representative can do what is listed below.

Will be able to secure information about the decedent’s assets and debts;
Has the authority to work with financial institutions on behalf of the estate
Has the ability to negotiate claims with creditors and strike any that are not valid
May file taxes with the IRS and enter into contract on behalf of the estate (i.e., selling property)

What Is The Role Of A Personal Representative In A Formal Administration?

The personal representative of the estate is appointed by the judge to be in charge of the administration of the estate. Florida uses the term “personal representative” instead of other commonly used terms such as “executor, executrix, administrator, and administratrix.” The personal represented has a legal duty to administer the probate estate according to Florida Law. Once the judge appoints a personal representative in the estate, they will issue what is called “Letters of Administration.” This document gives the personal representative the authority to start gaining access to the estate assets in order to identify, gather, value, and safeguard these items.

During the course of the formal probate administration, the personal representative will be required to complete the following:

Gather & Safeguard All The Decedent’s Probate Assets
Publish A “Notice Of Creditors” In The Local Newspaper To Notify All Potential Creditors Of The Decedent To File A Claim In The Manner Required By Law
Serve A “Notice Of Administration” To Provide Information To Any Interested Party That May Have Any Objections To The Administration
Conduct A Diligent Search To Locate “Known Or Reasonably Ascertainable” Creditors & Notify Them Of The Time By Which They Can File A Claim
Provide Proof Of Publication & Notification To All Potential And Ascertainable Creditors
File Tax Returns, If Applicable
Pay The Expenses Of Administering The Probate Estate
Pay Valid Claims By Decedent’s Creditors’
Prepare An Inventory & Appraisal Of The Estate’s Assets
Distribute Probate Assets To The Beneficiaries
Close The Probate Estate

The personal representative must file a final accounting with the court that shows the assets contained in the estate, how they have been managed, and the plan for distributing them to the beneficiaries. After the final accounting has been completed, the personal representative will file evidence of distribution and ask the court to close the estate. The court will then file an order closing the estate and discharging the personal representative of further responsibilities.

The Law Office of Nicole M. Stockmar, P.A. is a law firm serving Central Florida. Our attorneys offer dependable services in several legal disciplines, including probate, estate planning, and family law. Get in touch with us today to request a free consultation!