What is the Florida Probate Process and how long does it take?
Background
OK, here’s a concise background to the Florida probate process.
- When a Floridian dies, there are different rules.
- Why? Because that’s what the legislature says !
- Leaving property at death is serious stuff. After all, you are not around any more to tell us what should really happen to your property. So, the “signing” of a will requires witnesses and an entire procedure that must be followed for the will to be valid. See Florida Probate Law 732.502. Otherwise, you may have an objection to will.
- The rules are different when you are not here. They are different, than, say, during your lifetime, when one makes lifetime gifts.
- Same for the post-death probate process of dealing with a will or intestacy. It’s serious stuff to get property in the correct hands. And there’s special rules.
- So, what are these rules?
- Well, there are two main things to read.
- The Florida Probate Code is a set of statutes and laws.
- The Florida Probate Rules are (as you guessed!) a set of rules to guide you through the Florida probate process.
- To see a short video on how revocable trusts work with a will, click HERE. For info on what out of state beneficiaries and family members may need to know, click HERE.
The Florida Probate Process
God knows that you could talk for days about the probate process. Will contests, creditor’s claims, prudent investing, duties of a fiduciary.
Here are six bullet points which will help you to at least get started understanding this topic. Here you can understand the very basics to the process. Wondering if you can afford an Florida Probate Lawyer, consider trying to find one who will take your case on a contingency.
- File the will. Where? With the probate clerk of the county where the deceased Florida resident resided. Otherwise, you have an intestate estate and the heirs inherit. (To find out who is an heir, click HERE.)
- The person who has the will is called the “custodian”. She is supposed to file it within 10 days of death. You can read that law at Florida Probate Code 732.901.
- 2nd, get someone appointed to run the estate. A personal representative or “executor” should be appointed by the judge.
- 3rd, deal with creditors. That’s right, you MUST pay off all valid debts and expenses before a beneficiary sees a dime. And don’t forget that Uncle Sam gets paid ! Sometimes beneficiaries don’t realize that creditors of the deceased person get paid first. It’s so important that there is an entire section of the Probate Code on this subject.
- 4th, marshal all the assets. Find all the property, where it is, and how much it’s worth. Often times, you should get an appraisal so you know how much it’s all worth. If you want to sell some real estate, or another valuable asset, one of the first things a probate judge asks is “was there an appraisal?” If there are civil lawsuits, or rights, you might file a notice of that lawsuit with the probate court. And you should know what those rights are worth. File your probate inventory.
- 5th, have a plan. A plan for what? A plan for distribution. How much is distributed to each beneficiary or heir. You will need an estate accounting unless it is waived. And you are supposed to disclose how much administration expenses are, the executor’s compensation, attorneys fees and other costs.
- Figure out early on what you will do with the homestead. Most people die with a checking account, a car, a homestead and some investments. Homestead is technically not part of the probate estate in most instances. But, you can still do stuff for the benefit of the homestead beneficiaries. If you go to sell it, the title company who issues title insurance usually wants to see an order determining homestead.
- How long does this all take? First of all, it should NOT take years and years. The truth is that most probates in Florida are simple and straightforward. Figure 6-9 months. If there are lawsuits, will contests and big disputes, it could last a year or two. Even more if there are appeals. Absent family members fighting, it might go 9-18 months if you needed more time for some reason.