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Probate is the court process by which a deceased person’s property, known as the “estate,” is passed to his or her heirs and legatees (people named in the Will). The court is involved throughout the process, making sure the decedent’s bills and taxes are paid, and that the assets are distributed correctly.
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Do I need an attorney for probate in Florida?
Yes. The Personal Representative of the estate should enlist a Florida probate attorney to help in the proceedings. Even in a simple probate estate administration, various legal issues arise that require experienced legal counsel.
If you have experienced the loss of a family member, the Flammia Elder Law Firm can assist you with the legal process that occurs when a loved one passes away. If you serve as the Personal Representative of the estate, Kathleen Flammia and her team will advise you of your rights and duties under the law and represent you throughout the probate estate proceedings. The Flammia Elder Law Firm represents clients in all matters of Florida probate estate administration.
How long does probate last?
A summary or shortened version of probate can last from a couple of weeks to a month, depending on the court’s calendar. A formal probate can last up to one year. Many times, a formal probate can be settled in seven to nine months. In certain cases, distributions from the estate can be made in the interim.
What is a Probate Estate?
The Probate Estate includes all property held in the decedent’s name.
Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance, and property held in Trust, are generally not part of the Probate Estate (except for federal estate tax purposes), and therefore are not subject to the probate process. For example:
- Jointly owned bank accounts pass automatically to the surviving joint owner upon the death of one of the owners without going through probate. The non-probate property, however, is part of the decedent’s taxable estate.
- Property with a beneficiary designation such as life insurance, annuities, retirement plans, savings accounts, brokerage accounts and property titled in a Revocable Trust or Irrevocable Trust would not go through probate.
A Florida probate attorney will advise you what assets are not part of the Probate Estate and are not subject to the probate process.
How does the Florida Probate process work?
First, a Petition for Administration of the Will must be filed with the probate court, along with the original Will and a certified copy of the death certificate.
Next, notice must be mailed to all of the decedent’s heirs at law (usually the surviving spouse, children, and children of any deceased children), and to those named as beneficiaries in the Will. Notice can also be published in a local newspaper.
Beneficiaries can consent to the appointment of a Personal Representative or be formal noticed of their intent to become the Personal Representative. If the later and no one objects by a deadline set by the court, the personal representative (also referred to as the executor) named in the Will is appointed by the court.
What does the Personal Representative do?
The Personal Representative is responsible for:
- Collecting the probate property
- Paying any debts of the estate. As your attorney, Kathleen Flammia helps you clear out the creditor’ claims by publishing a notice to creditors. The creditors have a certain time limit and method by which they have to file a timely, valid claim in order to be paid from the decedent’s assets before those assets are distributed to the beneficiaries.
- Filing an inventory with the probate court. This is an itemized list of the probate property, including the value of each item.
- Filing an estate tax return in certain cases. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting allowed by the probate court.
- As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration.
The Flammia Elder Law Firm assists you or a family member with all of these duties.