Learn the basics of how the probate process works in Florida.
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Probate is the court-supervised legal process of handling assets and inheritance listed in the will of an individual, after that person has died. Objects, property, wealth and other assets that are willed to beneficiaries are held temporarily in probate. Until the probate period is complete, assets cannot be legally transferred and beneficiaries are unable to access their inheritance.
Probating an estate in Florida can prove that a deceased person's will is valid, determine the value of their property, identify and prepare an inventory of their property, pay all debts and taxes due and distribute the remaining property as the will or law directs. There are two types of probate under Florida law: formal administration and summary administration.
Formal Administration
Formal administration is the more commonly utilized probate process. It is also the more involved, complex and time-consuming of the two. Formal administration is required when the decedent has been dead for two years or less and when the value of the probate estate (not the gross estate) exceeds $75,000. Joint property does not pass through probate, nor does property with a named beneficiary or assets held in a revocable or living trust.
The process begins when the appointed personal representative, or executor, files a petition under oath in front of a notary public, then presents the will to a court. All heirs named in the will must be provided with notification that the probate process has begin. The executor may need to post a bond or the court could require a restricted depository in lieu of a bond, for the purpose of protecting beneficiaries from maladministration. Most jurisdictions also require a filing fee to begin the probate process which is payable to the clerk of the court.
Next, creditors must be notified and allowed the opportunity to present their claims to the executor. Once accounts have been settled and debts have been paid, a judge will rule on the matters of the probate and the executor will finally distribute the assets to the beneficiaries. The process takes a minimum of five months to complete, but can take up to several years depending on the nature of the case and whether or not litigation was involved.
Summary Probate
Summary probate is typically for smaller estates, and is available for estates with non-exempt property of less than $75,000 or the decedent has been dead for more than two years. The normal length of summary probate in Florida is only four to six weeks, while in fewer cases it can take up to four months.