What is Probate?
Probate is the judicial process that establishes the validity of the last will and testament. During the probate process, the deceased person’s estate is properly distributed to the heirs and designated beneficiaries. Any debt owed to creditors is paid off during the process. If there is no will and testament, assets are distributed according to Florida Statue Section 732.
What is Involved in Probate?
The steps of probate are as follows:
- An individual is appointed to administer the estate. The administrator is typically named in the will. This individual is called the executor. If there is no will or no executor is named, the probate court will appoint someone of its choice.
- The validity of the will is proven in court. Because state law governs the probate process, it’s important to follow the state requirements for signatures, witnesses, and notaries to ensure your last will and testament is valid.
- The deceased person’s property is identified then inventoried. It is important to note that most assets can neither be distributed nor sold until the probate process has been completed.
- Any properties owned by the deceased are appraised.
- Any debts or taxes owed by the deceased are settled and/or paid.
- After any outstanding debt is settled, the remaining assets are distributed according to the instructions in the will (or according to state law if a will does not exist).
How Long Does Probate Last?
The length of time the probate process takes in the state of Florida is dependent upon a variety of factors. All assets must first be located and accounted for. If the decedent (deceased person) has a last will and testament, this process is much quicker, as assets, accounts, and insurance policies are organized.
All debts and creditors must then be identified and notified of the probate proceedings. In the state of Florida, creditors are given 3 months to bring forth claims against the deceased person. If it is necessary to sell the decedent’s home(s) or property to settle the estate, then the time spent on the market adds to the length of time of the probate process.
After all property has been sold, debts have been paid, and remaining assets have been allocated and distributed to beneficiaries, the executor of the will may seek permission to close probate from the court. A quick probate process takes only 4 months, reliant upon good estate planning. Typically, and without proper estate planning, probate in Florida takes 9 months to 2 years with the average being 18 months.
What Property Does Not Enter Probate?
Not all assets enter the probate process. These are called non-probate assets and include:
Life insurance policies that designate a beneficiary (unless the policy is payable to the decedent’s estate)
Bank accounts that are jointly held with rights of survivorship or a “payable upon death” beneficiary as part of a legal contract
Real estate held in joint names with rights of survivorship
Any assets placed in a living trust
Who Can be the Executor of the Will?
The executor of the will must be affirmed by the probate court. This individual oversees the distribution of the decedent’s assets, within an appropriate time frame, according to the last will and testament. In the state of Florida, the executor can be any individual at least 18 years of age who is mentally competent and able to perform the duties required of him or her.
If this individual is a spouse or an immediate family member, he or she must be a Florida resident. Unless expressly waived by the will, the executor must not have any felony convictions.
If the court finds the nominated executor to be unfit or the individual declines responsibility, the court will ask the surviving spouse for another recommendation. If the decedent has no surviving spouse, the court will ask the beneficiaries for a majority decision to appoint another executor. If a majority cannot be obtained, the court will call a hearing to appoint a new executor.
Why is an Attorney Needed for Probate?
If you are the executor of a last will and testament, it is important you seek help from an experienced probate attorney. There are many issues that can arise during the probate process. Even in the event the probate process runs smoothly, it can be overwhelming for you if you have no legal experience.
Contact the 850-Call-Joe Law Firm today and allow me to help you with this difficult process. I can provide you with instructions and appropriate time frames given your circumstances. I can also help you deal with creditor’s claims against the estate.