No one likes to deal with the death of a loved one. You need time to grieve and mourn. You need time to think about your future. You need time to recover and learn to live again.
But you will need to work through all the steps to close your loved one’s estate, including going through the probate process.
As is so often true in legal matters, every probate case is different. That’s why it’s beneficial to work with an attorney before the death of a loved one, especially if you haven’t established a will or estate plan.
What is probate?
According to the Florida Bar, probate is a “court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.”
What probate covers
There is no complete list of what must go through probate because every case is a bit different, but the Florida Court System provides the following summary, giving a good example of what is covered in probate:
A bank account or investment account in the sole name of a decedent.
An annuity contract or individual retirement account payable to the decedent’s estate.
Real estate titled in the sole name of the decedent or in the name of the decedent and another person as tenants in common is a probate asset (unless it is homestead property).
Any business interests owned by the decedent.
As we said earlier, this is not an all-inclusive list, but if any of these three apply, regardless of their dollar value, you should reach out to The Orlando Law Group immediately.
Types of probate
There are two types of probate in Florida:
Chapters 731 through 735 of the Florida Statutes contain the statutes governing all Florida probate matters.
Formal administration is required for any estate valued at more than $75,000 and one with any non-exempt assets. It’s also necessary when a personal representative is needed to settle the deceased’s affairs. A personal representative may be necessary to investigate the deceased’s assets or if any lawsuits are filed on behalf of the estate.
The personal representative, referred to as an estate administrator or estate executor in other states, is a court-appointed legal representative of the estate. Their role is to act on behalf of the estate, including making decisions to reflect the deceased’s wishes and fairly distributing the estate’s assets.
Summary administration is a quicker, less-expensive type of probate. Estates that qualify for summary administration must be valued at less than $75,000 in non-exempt assets. Or, if the deceased passed away more than two years ago, their estate may qualify for summary administration.
The difference between a formal and summary administration
Summary administration may only be used for small, uncomplicated estates, while formal administration is necessary for more valuable estates or those with complications, such as no will, contested debts, or lawsuits filed against them.
How a probate attorney can help
The role of your Orlando probate attorney depends on how complex the estate is and whether the deceased left a will. If there is a valid will and the estate qualifies for summary administration, then your attorney’s role will likely be just giving advice or drafting petitions for the probate court.
Your lawyer also litigates on behalf of the estate. If the estate is sued by a creditor or interested party seeking a share (or greater share) of the assets, it’s the estate attorney’s job to represent the estate’s interests in a lawsuit.
The Florida probate process
The probate process can be difficult, but it can be simple with the proper steps in estate planning and an attorney at The Orlando Law Group at your side throughout the process.
When there is a will
Even if the estate qualifies for formal administration, expediting the probate process is much easier with a will. The will lists a personal representative (the executor) and an inventory of assets. It also designates beneficiaries, so often much of your lawyer’s job is verifying that the contents of the estate match the will and notifying the beneficiaries.
When there isn’t a will
Without a will, administering the estate is more complex. Your lawyer must identify all heirs, inventory the estate, determine any debts and notify creditors, and then allocate the remainder of the estate’s assets per Florida laws of succession.
Preparing for probate
A probate attorney in Orlando can help your estate administrator better prepare for probate by drafting the right legal protections for your estate and heirs. A lawyer can also help you if you’ve been named as an estate’s personal representative or the executor of the will, and you’re not sure what to do. They guide you through the probate process and ensure that all appropriate documents are filed correctly.
Developing an estate plan
Estate planning isn’t just writing a will. It involves preparing for end-of-life care, creating trusts to protect assets and establishing a steady source of income for your loved ones, and putting legal protections in place in the event you cannot advocate for yourself or make your wishes for medical care or financial decisions known.
Preparing documents for probate
An Orland probate attorney can help you inventory your estate and debts so it’s easier for the estate administrator to settle them.
Selecting an executor
You may not have a close friend or family member that you trust to act as your estate representative. Our Orlando law firm offers estate administration services. You can have peace of mind knowing a skilled attorney with a deep knowledge of Florida estate laws is handling all your estate matters.
Estate administration services
As part of our estate planning, The Orlando Law Group identifies your needs and advocates for your estate and wishes after you pass.
Notice of administration
A personal representative has specific duties, starting with mailing a Notice of Administration to any interested parties, as covered under Florida Statute section 733.212. Interested parties include the deceased’s spouse or partner, children, other relatives, beneficiaries, and others who may be an interested party and entitled to a share of the estate.
Florida Statute section 733.604 grants the personal representative authority to list and value all estate assets. They inventory all assets and send copies of the inventory to all interested parties.
Any heir or beneficiary has the right to demand a written explanation from the estate’s representative of how all items are valued, such as the worth of antiques, jewelry, cars, and artwork. The value of investments and bank accounts is straightforward, but any heir can also demand an accounting of those assets, too.
Some assets may need to be liquidated to pay debts or equitably distribute shares of the estate to all interested parties.
Pay debts and expenses
Florida Statute Section 733.2121 requires the estate’s personal representative to publish a notice to all reasonably ascertainable creditors who may have a claim against the estate. They must permit time for the creditors to file their claims unless the decedent died more than two years ago, in which case claims are barred.
Then, the personal representative evaluates the claims, paying valid ones and objecting to false debts by filing an objection with the county probate court.
Once the estate’s debts are settled and all estate administration fees are paid, like:
Personal representative fees, up to 3% of the value of the estate’s assets
Expert evaluation services
Mortgages and liens
Then the estate representative distributes the remainder of the assets. This may be done by transferring money to each beneficiary or transferring/deeding property.
A bank account is often created for the estate, which the representative uses to write checks to pay debts and heirs. If an Orlando law firm holds assets in a trust, then once the debts are cleared, the estate representative authorizes the release of those assets.
Why you should hire The Orlando Law Group
Probate is not as simple as just filing paperwork or submitting your will to the court system. In most cases, it is much more complicated.
Attorneys with The Orlando Law Group have spent their careers studying those rules and the Florida probate statutes.
As these are your loved one’s assets, it is best to make sure you have an attorney to work to help you keep as many of the assets as possible.
Plus, our attorneys understand this is probably the most painful time in your life. Our team focuses not just on the law but helping you through this process, explaining what is happening, and being there for you when you need us most.
Our Orlando probate attorneys are ready to help
If you live in Orlando, Sanford, Lake Nona, Winter Garden, Altamonte Springs, Windermere, or anywhere in Central Florida, please reach out to us today by calling (407) 512-4394 or visiting us online about estate planning to minimize probate.
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