Probate Administration
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (a “decedent”), paying the decedent’s debts, and distributing the decedent’s assets to their beneficiaries. Florida has specific probate rules, procedures, and deadlines to administer an estate properly. To understand the full scope of what’s involved, learn what a probate lawyer does for you that no one else can. It’s essential to work with a Florida probate lawyer who is familiar with those laws. Our Fort Lauderdale probate lawyers have that knowledge and experience.
Hi everyone, Samantha Fitzgerald here with SJF Law Group.
Do you really need an attorney to do a probate administration in Florida?
This is the time of DIY. Who wants to spend all that money on an attorney, right? Well, first of all, you’re actually required by law to have an attorney in Florida.
So, there’s two different types of probate administrations. There’s something called a summary administration and a formal administration.
A summary administration you are allowed to do on your own. No requirement to have a lawyer. There is no executor or personal representative appointed in that type of estate. Somebody is the petitioner, and only a beneficiary can be a petitioner.
So I’m not really sure of the statistics, but probably about half of those cases end up being done without an attorney. But it’s quite a complicated process depending on the nature of the assets, and it’s certainly a lot faster and done properly when you have an attorney.
But we’re going to talk about formal administrations today, which is what I call a full-blown probate administration—the type that you are accustomed to knowing about.
And as I said, you are actually required by law to have an attorney unless there’s one beneficiary. If the personal representative is the sole beneficiary, you’re not required.
But why would you want to have an attorney? Even if you weren’t required by law to have an attorney, why would you want to have an attorney?
Well, this is a very complicated process. This is a court case. It’s a legal process. It’s like saying, “I’m going to perform my own brain surgery on myself.” Of course, you would never do that.
You’re going to need to know how to prepare legal documents such as deeds to real estate. You need to provide an accounting to the beneficiaries. You need to file tax returns. You need to notify creditors and publish notice in the newspaper. You need to make proper distributions to beneficiaries.
And if you don’t do some of these things properly, you as the personal representative can be personally responsible. You are a fiduciary appointed by the court.
So you could be personally responsible to the Internal Revenue Service if you don’t file tax returns and make sure that taxes were actually paid. That goes for even past taxes that the decedent might have owed.
If you make distributions to beneficiaries and you don’t properly pay creditors that should have been paid, you can be personally responsible to those creditors.
Something as simple as, “Oh, I would like to buy the property from the estate, and I’m going to get an appraisal and I’m going to pay fair market value for that property from the estate.” Well, guess what? You’ve just breached your fiduciary duties because you are in an automatic position of a conflict unless you get permission from the court or the beneficiaries.
So there are so many traps that you can fall into that are really big and disastrous for yourself potentially. You can get sued by the beneficiaries for your breach of your fiduciary responsibilities.
And then who’s going to pay your legal fees? There are a lot of rules surrounding that. So it’s not a position that you want to be in. You want to do things properly.
So not only are you required by law to have an attorney, but it’s certainly a good idea because it is a very complicated process.
And not only is the attorney going to help you do it properly, but the attorney is going to help you get to the finish line much, much faster than if you were doing it on your own.
So, thanks for watching our video. We have lots of other great videos on our YouTube channel—lots of probate videos. So if you have any questions about the probate process, please check out our other videos.
And I’d love to hear your comments about probate. So please comment below if you’ve ever served as a personal representative or if you’ve been a beneficiary in an estate.
Please comment below. Thanks.
When Do You Need to Go Through Probate in Florida?
Probate is necessary when the decedent leaves probate assets. Only “probate assets” must go through the probate process to the decedent’s beneficiaries. Probate is unnecessary when assets pass to the decedent’s beneficiaries in some other way.
Who is the Personal Representative in a Probate Case
In Florida, the personal representative (often called an “executor” or “administrator” in other states) is responsible for administering the decedent’s estate, making a diligent search for any creditors the decedent may have had, paying off the decedent’s debts, and distributing the decedent’s assets to their beneficiaries.
Which Assets Go Through Probate and Which Don’t?
Assets that don’t pass through probate:
- Assets that are jointly owned with “rights of survivorship” (i.e., when one person dies, the surviving person gets the asset)
- Assets that have a designated beneficiary – such as TOD (transfer on death), POD (pay on death), or ITF (in trust for)
- Assets in a revocable trust
If not mentioned above, most other assets will pass through probate. A probate lawyer near you can help identify your assets to reduce probate concerns.
What Role Does a Will Play in the Probate Process?
The Will only controls probate assets that have to go through probate; it does not avoid probate. If the decedent left a valid Will, it must be admitted to the Florida probate court to effectively pass ownership of the probate assets to the beneficiaries named in the Will. If the decedent does not have a Will, the probate assets will be passed on to those entitled to receive them under Florida law through the probate process. It’s beneficial to work with a lawyer for wills and estates near you to draft a proper Will.
What’s the Difference Between Summary and Formal Administration?
There are two main types of probate administration under Florida law: formal administration and summary administration. Talk with a probate lawyer to determine their potential impact.
What is Summary Administration and When Is It Required?
Summary administration is a shortened version of a full probate administration.
Summary administration is available if:
- the decedent has been dead for more than two years (regardless of the value of the estate) or
- the decedent has been dead for less than two years, AND the value of the estate is less than $75,000 (not including exempt assets, such as homestead real property)
Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after death.
How is Formal Administration and When Is It Required?
Formal administration is a full-length probate administration. Formal administration is necessary if the value of the estate exceeds $75,000 OR if a personal representative needs to be appointed.
How Long Does the Probate Process Usually Take in Florida?
It depends on what kind of probate administration is necessary. A summary administration may take anywhere from 2 to 3 months to complete. Formal administrations generally take about six months at a minimum, but the process often extends to around 12 months or longer. However, each estate is unique, and a number of factors can significantly impact these timelines.
Why Should You Hire a Florida Probate Attorney?
SJF Law Group specializes in probate administration in the State of Florida. Our probate lawyers in our Broward County Plantation office guide families through the intricacies of probate with compassion and expertise. In times of difficulty, they strive to offer clarity, comfort, and peace of mind to those navigating this challenging process.
We understand the importance of having a skilled, experienced Florida probate attorney by your side. We address issues and concerns with personalized attention and professionalism. You don’t have to face this journey alone – let us assist you in securing your family’s future.
Our probate lawyers help clients in Boca Raton, Fort Lauderdale, Miami, and West Palm Beach, FL.
To explore how our probate attorneys can support you, contact SJF Law Group. Our Plantation, FL, law firm serves clients in the vibrant communities of Broward, Miami-Dade, and Palm Beach counties.
Connect with us today by calling 954-231-3430 or reaching out online. Your peace of mind is our priority, and we look forward to the opportunity to serve you during this crucial time.
Our Probate Attorneys
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About The Firm
Since 2011, SJF Law Group has been helping clients protect their families with estate planning, probate & trust administration. We pride ourselves on combining the personalized service and attention of a boutique firm, with the talent and legal acumen of a large firm.
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