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The death of a loved one will often times create legal obligations for the ones left behind. A Personal Representative or Executor of a Will needs a steady hand to guide them through the complicated process of dealing with the financial life that belonged to their loved one.
Orlando probate lawyer Adam Pollack has has been providing sound legal advice to his clients since 1996. Mr. Pollack recognizes that each client that he serves is an individual who requires personalized legal representation especially when dealing with winding down the financial affairs of a person who has died. Mr. Pollack will guide you through the complicated and time consuming probate system and allow for you to focus your energies elsewhere.
Mr. Pollack offers free office consultations and can immediately assist you. Call 407-834-5297 to schedule your free office consultation. If you prefer, you can click here to send your request via electronic mail.
What is probate?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (called a decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries (people or entities who inherit property). In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration. Formal administration of an estate is generally necessary when the value of the property of the decedent exceeds $75,000.00 in probate assets and the decedent has been dead for less than two years. Summary administration may be used when the assets are less than $75,000.00 or the decedent has been dead for more than two years.
What are probate assets?
Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
An example of a non-probate asset is a bank account that is titled to pay on death to another person or is held jointly with another person.
Why is probate necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those who are to receive them under Florida law.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
What is a personal representative and what does the personal representative do?
The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
- Identify, gather, value and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
Who can be a personal representative?
The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.
To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.
Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, or mentally or physically unable to perform the duties, or have been convicted of a felony.
A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.
Why does the personal representative need an attorney?
In most cases a personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Probate Rule 5.030(a) requires a personal representative to have an attorney in most instances. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on the rights and duties under the law and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.
What are the estate’s obligations to estate creditors?
One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.
The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.
How long does probate take?
It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.
If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative. This period can be extended if necessary.
If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.
HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?
The personal representative, the attorney and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation.
The personal representative’s compensation is usually determined in one of five ways:
- As set forth in the will.
- As set forth in a contract between the personal representative and the decedent.
- As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation.
- The amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries.
- As determined by the judge.
The fee for the attorney for the personal representative is usually determined in one of three ways:
- As agreed among the attorney, the personal representative and those who bear the impact of the fee.
- The amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries.
- As determined by the judge.