Losing a loved one is one of the most difficult situations anyone faces in life. If your loved one did not leave a will or a living trust, you may have to deal with seeing that your loved one’s debts are paid and that any remaining assets are properly distributed.

Those responsibilities add even more anxiety at a time when you are already suffering and grieving. In South Florida, when the responsibility for a deceased loved one’s financial affairs falls on you, don’t hesitate to reach out to an experienced West Palm Beach probate attorney.

When someone passes away, the legal procedure known as probate may be required. Probate completes and settles the deceased person’s financial affairs. In Florida, when someone dies without a will or a living trust, probate is the legal process that identifies and gathers the deceased person’s assets, pays that person’s taxes and debts, and distributes that person’s remaining assets to the beneficiaries.

Depending upon the size and nature of the estate and the nature of the estate planning documents, an estate in Florida may be settled in one of several ways:

  • no probate (or “disposition of personal property without administration”)
  • summary administration
  • formal administration

The administration of probate in Florida applies only to probate assets, that is, to those assets that the deceased person owned exclusively and singularly in his or her own name at the time of death or any assets that lack a legal provision for automatic succession that were owned by both the deceased person and by one or more co-owners.

Under Florida law, probate assets will include but are not necessarily limited to:

  • Investment accounts or bank accounts in (only) the name of the deceased person.
  • Life insurance, annuity contracts, or individual retirement accounts payable to the deceased person’s estate.
  • Except for homestead property, real estate titled exclusively in the name of the deceased person or in the name of that person and another person as tenants in common.

However, many of a deceased person’s assets may go directly to their new owner without any legal requirement for probate. In the state of Florida, non-probate property includes homestead property, homes and bank accounts where ownership is shared by more than one person, assets with designated beneficiaries (such as savings and retirement accounts and life insurance policies), and any assets held in a living trust.

WHAT IS DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION?

When a deceased person leaves little in assets, the “disposition of personal property without administration” allows any person who paid the deceased person’s final expenses – such as funeral costs and final medical costs – to receive reimbursement from the deceased person’s estate. Disposition without administration may only be used if the decedent did not leave real estate and if the assets are either exempt from the claims of creditors or do not exceed the amount of the final expenses.

In Florida, if you need to request reimbursement for a deceased person’s final expenses, complete the form titled “Disposition of Personal Property Without Administration.” It’s available in each county from the clerk of the court and it’s also online. A small fee is required along with documentation of your expenses and a copy of the death certificate.

If the deceased person left a will, it must be filed as well with the local circuit court. An experienced West Palm Beach probate attorney can help you with the paperwork and filings and review them for accuracy and completion to ensure that there are no unnecessary delays in the process.

WHAT IS SUMMARY ADMINISTRATION?

Summary administration is a probate “shortcut” that’s available if the deceased person died more than two years ago or if the value of the estate – excluding non-probate assets – does not surpass $75,000. The person who is named in the will as the executor – or anyone inheriting property – can initiate summary administration by filing a Petition for Summary Administration. If there’s a surviving spouse, that person must sign the petition. Any beneficiary who does not sign the petition must be formally notified that the petition is being filed.

A Petition for Summary Administration spells out the deceased person’s assets and the value of those assets, specifies who inherits what, and – on that basis – requests summary administration. In these cases, rather than naming an executor or an administrator of the estate, if the court decides the estate meets the requirements for summary administration, the court simply issues a court order that releases the assets and property to those inheriting it. An heir can then use the court order at a bank, for instance, to verify that he or she is the rightful inheritor of the deceased person’s accounts.

WHAT IS FORMAL ADMINISTRATION?

Formal administration (that is, “regular” probate) may be required if an estate cannot be settled in a simpler way. Formal administration begins when an executor is named in the will or when someone petitions the circuit court to be named as the estate’s personal representative. Beneficiaries and heirs (that is, the people who would legally inherit the estate if no will existed) are notified that formal administration will begin.

The court then issues “Letters of Administration” giving the estate’s personal representative the legal authority to settle the estate. If the deceased person left a will, that will must be filed with the court and its validity must be determined. The validity of a will may be determined by asking the witnesses to provide statements under oath. In Florida, a will is “self-proving” (that is, legally valid) if the witnesses, when they watched the will being signed, themselves signed a notarized statement to that effect.

In regular probate, the court supervises as the personal representative identifies and gathers the deceased person’s assets, pays the deceased person’s taxes and debts, and finally distributes what remains to those inheriting it. The personal representative must file a final plan showing the court what the estate held, how assets have been handled, and who will receive what.

Anyone with an objection may then raise it with the court. When assets have been distributed, the personal representative submits the final paperwork and receipts to the court and asks the court to close the estate. Formal administration usually requires six to twelve months.

To say that probate is complicated is an understatement. Executors, personal representatives, and surviving family members who need legal advice and/or representation regarding any probate matter in south Florida should contact an experienced West Palm Beach probate attorney as early as possible. The probate process can involve a number of time limits and deadlines, so the failure to act promptly can be a costly mistake.