Probate is the proceedings pertaining to the administering of estates and transferring assets held only in the name of a decedent. Assets held jointly, in trust or payable on death are not probate assets. Florida Statutes 731 through 735 set forth the laws of probate. There are different types of probate actions as follows:
This article focuses on the formal administration. The initial step in a formal administration is to open the estate. Certain documents must be filed with the probate court to open the estate such as a Petition for Administration, Oath of Personal Representative, death certificate, consent or proof of service upon interested parties or beneficiaries, etc. The Judge then signs Letters of Administration and an Order Appointing Personal Representative. If there is a Last Will and Testament the Judge also signs an Order admitting the Will.
The Personal Representative with the assistance of legal counsel must administer the estate pursuant to requirements set forth by Florida Law. This includes publishing notice to creditors in a newspaper in the county in which the probate action was filed. Creditors then have three months to file claims against the estate. There is also an obligation to serve notice to creditors to any reasonably ascertainable creditors. Additionally, there are also certain documents that need to be served or filed with various agencies. The inventory must be served upon the Florida Department of Revenue. If the decedent was over the age of 55, notice shall be served upon the Agency for Health Care Administration. Depending on the county the case if filed, an affidavit of no-tax may need to be recorded prior to filing with the Court.
The administration of the estate further involves the gathering, transferring and/or selling of the decedent’s assets. Some counties require that the assets be held in a restricted depository until an Order of Distribution or Transfer is entered. Some counties require that the assets be held in Trust until distribution.
When the appropriate criteria for administration of the estate have been satisfied the assets are transferred to the appropriate beneficiaries. A Will may set forth the decedent’s wishes as to transfer of assets. If there is no Will then the assets are transferred according to the laws set forth by Florida Statute. After distribution, the necessary documents can be filed to close the estate and discharge the Personal Representative.
There are many different issues that can arise during the course of a probate action. Some of these issues include locating a beneficiary, opening a safe deposit box, distribution when the claims exceed the assets of the estate, contesting or compromising a claim, elective share by a surviving spouse, will contests etc.
The attorneys at the law firm of Scott R. Bugay, P.A. have filed numerous probate and/or guardianship cases in over 20 Florida counties. If you have any questions about probate, please feel free to contact us for a free consultation.