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Understanding The Probate Process In The State Of Florida

Understanding the Probate Process in the State of Florida - Dubyak Law Firm, P.A.In this article, you can discover:

  • The meaning of testate and intestate in Florida, and the difference between them.
  • What you can expect during the probate process in the state of Florida.
  • The court’s role in the probate process in the state of Florida.

What Is The Difference Between Testate And Intestate In Florida, And How Does This Impact The Probate Process?

Testate means that the decedent, or the person who died, had a will. More specifically, it means they had a last will to inform their loved ones of how they wanted their affairs to be handled and distributed. On the other hand, intestate means that you have passed away without a will.

A will allows you to decide what you want to happen with your estate and belongings after you die. You can pass down specific items to your beneficiaries and establish the next steps for your estate ownership, among other things.

Intestate means that you died without a will, in which case the state of Florida decides what happens to your estate and assets. The state divides up your estate as they see fit, using already established statutes. If you want certain loved ones to receive specific items, you must write a will to inform your loved ones and the state of how to distribute these items.

Without a will, your estate will be distributed according to Florida law, usually to your spouse and children. The state has a system to determine who receives your estate and what percentages they each receive, depending on how they are related to you.

How Long Does The Probate Process Typically Take In Florida?

The timeline for the probate process depends on the probate type, the estate size, and how many people are involved. For example, a summary administration, which is a low-value estate, or one in which someone died more than two years ago, is generally a faster probate process. It can be completed in as few as four to six months. A non-summary administration without any disputes usually takes six to nine months.

If the estate is large and has a lot of assets and there was no will, it could go on for years. This is also true for large estates that have a will that is being contested. Typically, probate takes approximately nine months for an average person.

How Are Accreditors Claims Handled During The Florida Probate Process?

One of the factors that contributes to the slow process of probate is that there is a lot of built-in wait time. For instance, once you begin the probate process, you must run a notice to creditors for several weeks in a local newspaper.

After that, you must file a notice to creditors with the court to show that you have complied with the statutes by publishing the notice in the relevant newspapers. The creditors then have 30 days to file a claim with the estate stating they are owed money by the deceased.

If a creditor files a claim, you can file an objection to their claim. Once you file this objection, you must wait another 30 days. This is because the creditors could have filed a lawsuit to collect the funds that they believe they are owed from the estate.

This is the general process for how Florida handles creditors’ claims in probate. Most of the time, once you file an objection to the claim, this will alleviate these claims from the estate. Usually these claims are small, such as a few thousand dollars for an ambulance ride or an outstanding utility payment.

You can object to these claims, and if they are low-dollar value claims, most likely no one will sue for them, so they will disappear. This is an excellent way to save the estate some capital.

What Is A Homestead Exemption And How Does That Impact Florida Probate?

A homestead exemption means that you get to exempt your homestead from taxes. In the Florida probate process, it is considered an exempt asset, which makes your Florida homestead exempt from creditors.

Even if you did owe money to your credit card company, the power company, or your doctor’s office, for example, none of these entities could attack the value of your home if it has been homesteaded. That means they cannot force a sale of the homestead in order to repay the debts of the estate.

A homestead is essentially a free asset for the estate, which is a major benefit of having a homestead in Florida. Because you get your house for free under most circumstances relating to probate, it is a good idea to get your house homesteaded.

Can A Non-Resident Serve As A Personal Representative In A Florida Probate Case?

Although it comes with a few more caveats, a non-resident can serve as the personal representative in a Florida probate case. However, they must be a lineal relative, such as a father, mother, daughter, son, or grandchild. They also must not be a felon.

How Are Joint Accounts And Payable-On-Death Designations Treated In Florida?

Payable-upon-death designations and joint accounts are generally not part of the estate. Creditors will not garnish the money that is in a joint account, and it will not be part of the distributions of an estate.

For example, if a husband and wife owned a joint checking account, or a daughter and a father owned a joint checking account, if one of the joint account holders passes away, that money becomes the sole ownership of the other account holder. The money in the account is not part of the estate, but belongs to the other person listed on the joint checking account. The same rules apply to payable-upon-death designations.

This is solid, basic estate planning that you can do if you have a checking account, savings account, or a similar type of account. You can even do this with your 401k account or a stock portfolio. Most companies have payable-upon-death forms that you can fill out to designate who you want to have that asset upon your death.

If you are a joint account holder for someone who has passed away, you must show the company or the administrator of those assets the death certificate, and you can get paid the stock portfolio. The account is then taken out of probate. You do not have to probate those assets to get access to them, which is a huge benefit.

Most people who pass away do not have very complex estates. They may have a checking account, a home, and a few other assets. You can pre-plan for the transfer of your home with a Ladybird deed, which operates similarly to a payable-upon-death form. It transfers the ownership of your property upon your death from you to whoever you want to inherit it.

You should keep in mind that your bank accounts and all your other monetary or capital assets usually have payable-upon-death forms. These can allow you and your loved ones to avoid probate entirely with a little estate planning, which is a huge benefit.

Joint accounts and payable-upon-death accounts have an added benefit if your estate does go through probate. Your loved ones would have access to the money in these accounts, giving them the capital needed to perform those probate duties.

How Are Minor Beneficiaries Protected In Florida Probate Proceedings?

Generally, the court will appoint a guardian ad litem, or an attorney ad litem, to oversee the process for minors. This is because minors do not have the authority or ability to defend themselves or represent themselves in a probate case.

The court will appoint an adult to represent them and take care of them. This person will need to sign any papers that a minor would normally sign, agreeing to the appointment of a personal representative or to the final accounting of an estate, for example.

What Is The Role Of The Court In Overseeing The Florida Probate Process?

The court oversees the Florida probate process by ensuring that Florida statutes are followed, proper paperwork is completed, proper notices are given, and by making sure that everything goes as it is supposed to. They are also there to make sure that any existing will is authentic and properly signed.

They are also there to oversee the distribution of the estate’s assets. They ensure that the beneficiaries receive them in the manner in which they are entitled to them. Finally, they make sure any required mandates are followed.

For more information on the Probate Process In The State Of Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 266-7822 today.

Jeremy Dubyak, Esq.

Call For A Consultation:
(850) 266-7822

We’ll Discuss Your Situation And Advise On What To Do Next. To Schedule, Please Call Our Office At (850) 266-7822.

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