When a loved one passes away, his or her estate often goes through a court-managed process called probate where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a well-drafted and properly funded living trust, it is likely that no probate is necessary. However, the successor trustee needs to administer the trust and distribute the individual’s assets according to Florida law.
Every probate estate is unique, but most involve the following steps:
- Filing of a petition with the proper probate court.
- Notice to heirs under the Will or to statutory heirs (if no Will exists).
- Petition to appoint a Personal Representative.
- Inventory and appraisal of estate assets by Personal Representative.
- Payment of estate debt to rightful creditors.
- Sale of estate assets.
- Payment of estate taxes, if applicable.
- Final distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the Will?
An objection to a Will, also known as a “Will contest” is a common occurrence and can be incredibly costly to litigate. To contest a Will, one has to have legal “standing” to raise objections and a valid reason to contest the Will.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. Certain types of assets, called “non-probate assets,” do not go through probate. These include:
- Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies where there are designated beneficiaries.
- Bank accounts with “payable on death” (POD) designations or “in trust for” (ITF) designations.
- Property that was properly conveyed to a trustee of a valid trust.
Do I get paid for serving as a Personal Representative?
Personal Representatives are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the individual’s estate. In addition, they are entitled to statutory fees, depending on the size of the probate estate among other factors.
How much does probate cost? How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as:
- the value and complexity of the estate,
- the existence of a Will, and
- the location of real property owned by the estate.
Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include the Personal Representative’s fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds. The costs of probate typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.