Florida Probate Process
What is the Florida Probate Process?
The Florida Probate Process can be thought of as a three step process, supervised by estate lawyers and a probate court judge, to handle one’s financial affairs when one dies. First, you have to gather the assets of the “decedent.” Then, you have to pay off any just debts, expenses, and legal obligations which the person may have had before he or she passed away, as well as expenses associated with the probate process. Lastly, you need to give away all that money: bank accounts, real estate, Florida homestead, and good cold cash are perhaps the most common forms of property which pass at death.
But, one needs to understand that not all property passes through the probate process. Why? Florida homestead may not be considered a probate “asset”. Widows and minor children have a right to Homestead. Joint accounts such as a pay on death bank account, or a right of survivorship account, may pass outside of probate unless they were “convenience accounts” under Florida probate law. Many Florida estate planning lawyers advise clients to use a Florida revocable trust, and other strategies, to eliminate or minimize the probate process. In such instances, it is possible that many assets pass outside of probate, or without the supervision of estate lawyers and the probate court system. Unless someone files an objection or a challenge. That’s how estate litigation can begin.
And while most heirs, widows, beneficiaries, and next of kin may think of the Florida probate process in terms of receiving an inheritance, many Florida trust lawyers will tell you that there are two important legal matters, or tasks, which might be handled in the probate administration.
The probate process includes the consideration of estate creditors, also called probate creditors. What is a creditor? A creditor to a Florida estate is someone who was owed something, typically money, by the deceased person during his or her life. And since that debtor is now dead, the creditor has to “open up probate” if one is not already open, and deal with the probate system to make their claim. If you are owed money by a person who is deceased, you may be a creditor, and may have a very limited amount of time to make your claim. Florida does not let creditors make a claim more than 2 years after death. If there is not probate opened, hire a Florida probate lawyer and open a probate. File a statement of claim, or a creditor’s claim in the probate and go get your money. If a probate was opened up by a Florida estate lawyer who you did not hire, be careful: you may only have three months to file a statement of claim. You can read more about creditor’s claims and the Florida Probate Code by clicking here.
Many beneficiaries forget that before an heir receives a dime, the creditors need to be dealt with. But, you also need to understand the difference between an estate creditor, and debts of the decedent, versus those that provide services to the estate, and which may create expenses of administration. The probate process, then, is about a lot more than just giving or getting an inheritance. You have to, you must, deal with the deceased person’s creditors and the expenses of administration.
Another important aspect of the probate process that many overlook is how a revocable living trust can work with a probate or a Florida will. Florida trust lawyers will tell you that a revocable trust can avoid probate, but did you know that you should be filing a Notice of Trust with the court system? Did you know that a revocable trust or living trust must pay the decedent’s debts and expenses of administration if the estate assets are not enough? Knowing how the personal representative, or executor, of a Florida Probate deals with the trustee of the person’s revocable trust is very important. After all, one cannot place all of his or her assets in a revocable trust and avoid creditors at death. This can often create probate litigation between estate beneficiaries, or even heirs at law or next of kin, with creditors.
Finally, the probate process is an important “venue” to let people raise objections to a will or to the probate of a will. Will challenges, and contests to wills, and petitions to revoke Florida probate are heard in the probate court. For good or for ill, probate litigation in Florida seems to be a growth field, as dis-inherited family members, former beneficiaries, 2nd or 3rd spouses and adult step-children hire estate litigation law firms throughout Florida to make a claim, try to overturn a will, or just get their “fair share” of an inheritance.
You see, Florida probates are not just for the reading of the will.