Probate. Melissa Geist, Operation Assistant Director Karen Yanik, Operation Manager. Civil, Probate and Mental Health Divisions

Transcription

1 Probate Melissa Geist, Operation Assistant Director Karen Yanik, Operation Manager Civil, Probate and Mental Health Divisions

2 What is Probate? Probate refers to the combined result of all the procedural acts necessary with or without a will, in order to establish the validity of a will. It is a legal process through which the assets of a deceased person are inventoried, distributed to pay creditors' claims against the estate, and, if there are remaining assets, distributed to the heirs or beneficiaries. The court determines the validity of the will and oversees the process to ensure that the estate is properly administered. Probate proceedings are initiated by filing a petition seeking to administer an estate or to admit a will to probate. A filing fee is required and will vary according to the type of administration necessary for the estate. The venue is the county or state where the decedent resided, or if no proceeding in that county or state, where the property is located

3 Probate Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent) To pay the decedent s debts To distribute the decedent s assets to his or her beneficiaries or heirs Probate is governed by F. S. 731 (The Probate Code) and the Florida Probate Rules Florida Probate Rule states, Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.

4 Types of Probate Cases Formal Administration This is used when: There are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate Has a value exceeding $75,000 and includes real property or the gross estate for federal estate tax purposes is in excess of the amount requested Letters of administration will be issued to the personal representative so that he or she will be able to administer the estate A formal administration must be filed by an attorney licensed to practice law in Florida, unless the personal representative is the sole beneficiary and even in those instances, a licensed attorney is recommended due to the technical and legal nature of this action

5 Types of Probate Cases Cont Summary Administration The entire value of the estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 If the will of the decedent does not direct formal administration Estate is still responsible for claims unless more than 2 years since death Disposition of Personal Property without Administration This type of proceeding is filed to request release of the decedent's assets to the person who paid for final expenses such as funeral costs or medical bills that accrued in the last 60 days. Disposition of personal property without administration cannot: Exceed $6,000 Exceed the amount of funeral bill Include real estate Transfer loans Release assets from a safe deposit box

6 Types of Probate Cases Cont Ancillary Administration Ancillary administration is the administration of the estate of an outof-state resident who leaves real or personal property in Florida, has credits due him from Florida residents, or has liens on property in Florida. Similarly, ancillary probate may not require a formal proceeding if the decedent s Florida property is worth $50,000 or less. After the domiciliary probate has concluded, the personal representative can file an authenticated transcript of the domiciliary proceeding to validate the will and identify the beneficiaries of the estate

7 Probate Assets Assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership. (Payable/transferable on death) Intestate If someone dies without a valid will Personal Representative The person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent s probate estate. (In Florida, used instead of executor, executrix, administrator and administratrix ) Caveat Document filed by an interested person or creditor that requires notice to him that an estate is being administered or that a will is being offered for probate Heir Probate Terminology Person(s) including surviving spouse who are entitled under statutes of intestate succession to property of decedent

8 Probate Terminology Cont. B e n e f i c i a r y A person designated as the recipient of funds or other property under a will, trust, insurance policy, etc. Will A writing signed by the decedent and witnesses, that meets the requirements of Florida law which names the beneficiaries whom the decedent wants to receive from the probate assets. The decedent can also designate a personal representative of his or her choosing to administer the probate estate C o d i c i l An instrument that changes or revokes a prior will or codicil E x e m p t P r o p e r t y Household furniture, furnishings, and appliances in the decedent s usual place of abode up to a net value of $20,000. Other types of exempt property can be found in F. S Protected Homestead Any property protected

9 Steps to file a Summary Administration Petition for Summary Administration and Petition to Admit Will Death Certificate Last Will and Testament and Codicil (if any) Order Admitting Will to Probate Copy of paid funeral bill (if less than 2 years since death) Waivers from all heirs/beneficiaries Order of Summary Administration (will close the file)

10 Steps to file a Formal Administration Petition for Administration Last Will and Testament Death Certificate Oath of Personal Representative and Designation and Acceptance of Resident Agent Order Admitting Will and Appointing Personal Representative Letters of Administration Inventory Notice to Creditors and Publication Waivers from all heirs/beneficiaries Affidavit of no Florida Estate Tax Verified Initial and Final Accounting Petition for Discharge Order of Discharge

11 This proceeding is used to request release of assets of the deceased person who paid the final expenses, such as funeral or medical bills, for the last 60 days F. S , the estate must consist of personal property exempt from claim of creditors, and non -exempt personal property that does not exceed the amount of funeral expenses. Disbursement cannot exceed the aggregate of $6, (F. S (1)(b) There can be no real estate in the estate Forms and instructions are provided by the Clerk s Office. This type of administration is not required to be filed by an attorney Death Certificate Proof of assets Steps for filing an Personal Property without Administration Proof of paid expense

12 Trusts A revocable trust is a document created to manage assets during a person s lifetime and distribute the remaining assets after death Upon the death of a person with a Revocable Trust, the trustee is responsible for paying all claims and taxes, and distributing the assets to your beneficiaries as outlined in the trust agreement A revocable trust avoids probate by the transfer of assets during the person s lifetime to the trustee Upon the death of the Trustee, the named trustee must file a notice of trust with the court having jurisdiction of the estate

13 Filing Fees Summary Administration less than $1,000 $ Summary Administration $1,000 or more $ Formal Administration $ Disposition of Personal Property $ Caveat $41.00 Notice of Trust $41.00 Orders for Disposition $6.00 per order

14 Resources Consumer Pamphlets-Probate in Florida Basic Probate Step by Step by Fitzgerald Trawick s Redfearn Wills and Administration in Florida Florida Probate Rules

15 QUESTIONS