What is Probate? This Blog Applies to Florida Law Only.

Probate is an administrative proceeding conducted in the probate division of the circuit court where the deceased person had his/her permanent residence. The purpose is to ensure that all interested parties, including relatives who would inherit under the Florida law, beneficiaries named in a will, and creditors of the deceased, receive notice of the death and proceedings and have the opportunity to file claims or objections, to afford due process to all interested parties.

If the decedent had no assets in his/her name alone, then in most cases no probate proceeding would be filed. It is important to note that a Last Will and Testament has no legal effect until the maker dies and a probate court enters an order admitting the will to probate.

In Florida, you can have a summary administration if the deceased died 2 or more years ago, or if the assets in the decedent’s name alone are under $75,000.00 plus the decedent’s “homestead residence”. This can be done if the decedent left a will or died without one. The proceeding is limited to determination of homestead, and if necessary, an Order Admitting Will to Probate if there is a will, and an order of summary distribution of assets. No Personal Representative is appointed (Fla. Stat. 735.201).

If the estate needs to sell assets, there is a dispute about the will or a question about who the heirs are, a Formal Administration probate is required. Formal Administration is used when the decedent’s assets are over the limit for Summary Administration and died less than 2 years ago, as well as when other issues need to be addressed.

The Personal Representative has the duty to retain an attorney, to collect and safeguard the assets subject to probate, to notify all interested parties of the proceedings, to make distribution of assets in accordance with the court’s order, to follow the law, and orders of the Court.

Claims of creditors must be filed in court within 3 months after the first publication of Notice to Creditors. Persons who advanced funds for funeral expenses and legal expenses for probate should file a claim in the estate for reimbursement. This means that the Court cannot approve any disbursement of money or assets until 3 months after first publication of Notice to Creditors.

When a married decedent is survived by both a spouse and child or children, and owns homestead real property (permanent residence) in his/her name alone, the surviving spouse receives a life estate in the residence with the obligation to maintain the property in good condition and pay the expenses.

But what if the surviving spouse doesn’t want to live there, cannot afford the maintenance, or the decedent’s children are from a prior marriage? The surviving spouse has the option to rent it.

Florida Statute 732.401 gives the surviving spouse 4 months from the date of death to record an election to take a 50% interest in the title to the property instead of a life estate. This puts the surviving spouse in a position to sell the property and get 50% of the net proceeds from the sale.

If the surviving spouse decides to sell after 4 months from date of death, and no election was made, then he or she will have to negotiate with the decedent’s children for permission to sell and how the proceeds will be divided, or file a suit for partition of the property.

This illustrates just one reason why it is important to consult with a probate attorney as soon as possible after a death.