I recorded this interview with Chris Jones of Giles and Robinson, PA to really dive into a clear understanding of some common questions that come up with Probate. I have listed the questions and a simplified answer below. There are far more questions then what we covered so if you have specific questions about probate and/or estate planning, I would suggest reaching out to Chris, he is a great resource!
In my research to record this interview, I also came across a very informative pamphlet that has been produced by the Florida Bar Association. It is packed with a lot of really great information and details.
As always, if you need help selling a home that is currently in probate or that you have inherited, it would be my team’s honor to help you and your family successfully navigate the sales process.
Sincerely – Mark Ramey
What is Probate?
Probate is the legal process that takes place after someone dies. It makes sure property and possessions of the decedent are transferred to the correct people, and any taxes or debts owed are paid in full. If there is a written will, the court checks that it was signed and witnessed correctly and is valid, and oversees that the directions in the will are carried out.
How long does the Probate Process take?
In Florida, unless the decedent has been dead in excess of two years, a probate must be open for at least three months, which is the time allotted for creditors to make claims against the estate. A relatively simple estate will normally take five to six months to complete, but an estate with difficult issues can take much longer?
Do all estates in Florida have to go through full Probate?
No, very small estates without real property may qualify for “disposition without administration” and some estates may qualify for Summary Administration, which involves less interaction with the court system. Most probate estates do go through Formal Administration probate so that the Executor of the will can be recognized and granted Letters of Administration by a judge.
What are the differences between probate assets and non-probate assets?
Probate assets, in general, are assets owned solely by the deceased person at the time of death.
Examples of non-probate assets would include: life insurance or annuity contracts payable to a specific beneficiary; and bank accounts and other investment accounts with a payable on death provision or held jointly with rights of survivorship.
Who is legally responsible for handling the probate for an estate?
No one is “legally responsible” to undertake a probate. Any “interested party” can start the probate process. If there is a will, then the person designated as the Executor or Personal Representative has first priority to be appointed by the court. Without a will, a majority of the beneficiaries may appoint a Personal Representative.
What are the responsibilities of the Executor/Personal Representative of an estate?
Some of the things the Personal Representative is typically responsible for include: identifying, collecting, and valuing the probate assets; identifying and notifying creditors that their claims must be filed; hiring an attorney and other professionals such as accountants and a Real Estate Agent; filing tax returns and paying taxes; paying claims against the estate by the creditors; and distributing the remaining assets to the beneficiaries.
Should a Personal Representative hire an attorney?
A Summary Administration does not require an attorney to be hired. Formal Administration does require an attorney.
After a property owner dies, can his or her Power of Attorney be used?
No, a Power of Attorney (POA) becomes invalid at the time the creator of the POA dies.
What if the deceased left no will?
If there is no will, Florida has an intestate succession law which states that certain persons receive the estate. Some of the time, the intestate succession is not exactly what the deceased would have wanted, which is one reason why a will is a good idea.
When do grandchildren inherit a share of an estate when there is no will?
If there is no will, then the grandchildren would inherit a share of the estate if his or her parent predeceases the decedent.
What if we cannot find the original will but have a copy?
There is a process to authenticate the will but it adds time and expense to the probate process.