Probate is the legal process after someone dies to settle their estate and distribute their assets to heirs or beneficiaries. It is a court-supervised procedure that ensures the deceased person’s debts are paid, and their remaining assets are distributed according to their Last Last Will & Testament, or if there is no Last Will & Testament, according to Florida’s intestate succession law.

Unfortunately, you are most likely going through the grieving process when the issue of a probate comes up, and the last thing you want to do is to be buried in paperwork and responsibilities if you are the Personal Representative under a Last Will and Testament, or facing an even worse situation where there is no Will. At the Martella Law Firm, we generally recommend to take the first 30 days to take care of yourself and your family and grieve the loss of your loved one. There is nothing that is an emergency. The bank is not going to foreclose on the mortgage immediately, and the credit card companies and hospitals may or may not have an enforceable claim against the estate. Once you have had an opportunity to catch your breath and get control of your emotions, we can sit down together and work out a plan regarding how to get your loved one’s affairs in order and handle their estate in an organized and orderly fashion.

During probate, a court oversees the administration of the estate. This includes the identification, valuation, and distribution of assets, as well as the payment of debts, taxes, and expenses. The court may also resolve any disputes or claims related to the estate, such as challenges to the validity of the Last Will & Testament, or disputes among heirs or beneficiaries.

In Florida, we generally have two types of probate: 1.) A Summary Administration for estates where the assets are under $75,000, or the decedent passed more than two years ago and, 2.) A Formal Probate where the estate’s assets exceed $75,000 and the decedent has been deceased for less than two years.

The probate process has several steps, including the following:

1.) Appointment of a Personal Representative: If the deceased person had a Last Will & Testament, it may name a Personal Representative to administer the estate. If no Last Last Will & Testament or no Personal Representative is named, the court may appoint one. The Personal Representative is responsible for managing the estate during probate, including inventorying and valuing assets, paying debts and taxes, and distributing assets to heirs or beneficiaries.

2.) Notice to creditors and beneficiaries: The Personal Representative typically provides notice to creditors and beneficiaries, as required by law, informing them of the probate proceedings and allowing them to file claims against the estate or contest the Last Will & Testament. It is important to note that if a creditor fails to file a claim or sue the estate within two years of the date of death of the decedent, then the claim is barred.

3.) Inventory and appraisal of assets: The Personal Representative is responsible for identifying, inventorying, and appraising the estate's assets, which may include real estate, bank accounts, investments, personal property, and other assets.

4.) Payment of debts and taxes: The estate’s debts, taxes, and expenses, including funeral expenses, administrative costs, legal fees, and outstanding debts, are typically paid from the estate’s assets during probate.

5.) Distribution of assets: Once debts and taxes are paid, the estate's remaining assets are distributed to heirs or beneficiaries according to the terms of the Last Will & Testament, or Florida’s intestate succession statute.

6.) Final accounting and closing of the estate: The Personal Representative provides a final accounting to the court, detailing the administration of the estate and the distribution of assets. Once the court approves the final accounting and all matters related to the estate are resolved, the estate is closed.

It’s important to note that probate can be a complex and time-consuming process, and it may involve court fees, legal expenses, and delays in the distribution of assets. In some cases, probate can also be avoided or simplified through estate planning strategies such as creating a revocable living trust or using beneficiary designations on certain assets.

Meeting with Mark for a free consultation to discuss your particular financial situation and family structure can provide guidance on probate laws and procedures in Florida, and help ensure that your ultimate estate administration process is carried out smoothly and effectively. He’s here to help when “life happens.”