Losing a loved one is hard. Worrying about the deceased’s estate only adds stress to the situation. Probate is the legal process through which a deceased person’s estate is administered and distributed under court supervision.
It involves submitting and validating the deceased person’s will in the proper Florida court, identifying and inventorying assets, paying debts and taxes, and distributing remaining assets to beneficiaries.
But how does probate work in Florida, and what are Florida’s probate laws? Read on to learn more about the process and when you need the assistance of a Florida probate attorney.
A Glossary of Probate Terms
To understand what probate means, you may need to know the following terms:
- Beneficiary—an individual or entity entitled to receive assets from a will, trust, or similar designations;
- Claims against the estate—creditors’ claims for unpaid debts filed during the probate process;
- Codicil—a legal document that amends or supplements a will;
- Decedent—the person who has passed away and whose estate is going through probate or another legal process;
- Estate tax—a tax imposed on high-value estates, calculated based on the value of the estate;
- Executor—the individual or institution named in a will to manage and administer the estate of the deceased, paying debts and distributing assets according to the will;
- Fiduciary—a person or entity entrusted with managing assets or responsibilities for another, such as an executor, trustee, or guardian;
- Guardian—a person appointed by the court to manage the affairs of someone who is unable to do so due to age, incapacity, or disability;
- Heir—an individual entitled by law to inherit property when there is no will, including family members such as children, spouses, or parents;
- Intestate—dying without a valid will, resulting in the distribution of assets according to state laws through a process called intestate succession;
- Inventory—a detailed list of all assets owned by the deceased, including real estate, financial accounts, and personal property;
- Letters of administration—a court document issued to an administrator, granting them authority to administer the estate of someone who died without a will;
- Letters of testamentary—a court document issued to the executor of a will, granting them authority to administer the estate and carry out the instructions in the will;
- Living trust—a trust created during the lifetime of the person who sets up the trust;
- Personal representative—the person or entity responsible for managing the probate process;
- Probate—the legal process of administering a deceased person’s estate, which involves validating the will, paying debts, and distributing assets to heirs or beneficiaries;
- Testamentary trust—a trust created by a will that becomes effective upon the death of the testator;
- Testator—someone who creates a will;
- Trust—a legal arrangement where a trustee manages assets on behalf of beneficiaries; and
- Will—a legal document outlining how a person’s assets should be distributed after their death and appointing a personal representative.
These terms are central to understanding the probate process, and using them correctly can help streamline estate planning and administration.
What Is Probate?
The Florida Probate Code governs estate distribution in the state. The primary purposes of probate in Florida are to ensure payment of the deceased person’s debts, taxes, and other obligations, to transfer the legal title of the deceased person’s property to the beneficiaries, and to resolve any disputes that may arise regarding the distribution of the estate.
The Role of the Personal Representative
The estate’s personal representative plays a crucial role in the probate process. They are responsible for:
- Identifying and gathering assets. The personal representative must locate and take control of the deceased’s assets, including real estate, financial accounts, and personal property, to prepare them for distribution or sale.
- Creating an asset inventory. A detailed inventory of all probate assets, documenting their type and value, must be filed with the court.
- Paying debts and taxes. The personal representative must notify creditors, review and pay valid claims, and ensure that any outstanding taxes, including estate and income taxes, are filed and paid.
- Managing the estate. During probate, the personal representative must safeguard the estate’s assets, such as maintaining property, managing investments, and ensuring the proper documentation of expenses.
- Communicating with beneficiaries. The personal representative must keep beneficiaries informed about the estate’s progress and resolve disputes related to asset distribution when necessary.
- Distributing assets. Once debts, taxes, and expenses are resolved, the personal representative distributes the remaining assets to beneficiaries according to the will or state intestacy laws.
- Closing the estate. The personal representative files a final accounting with the probate court, seeking approval to close the estate once all responsibilities are completed.
These duties require the personal representative to act as a fiduciary, meaning they must act in the estate’s and its beneficiaries’ best interest throughout the probate process.
What Is Probate Litigation?
Probate litigation refers to legal disputes that arise during the probate process. These disputes often involve disagreements over the validity of a will, the interpretation of its terms, or how the estate is being administered. Beneficiaries, heirs, executors, or other parties with a stake in the outcome of the probate proceedings can be involved.
Common issues found in probate litigation include:
- Will contests. Disagreements over the validity of a will, such as claims that the decedent was not of sound mind when creating the will or allegations of undue influence or fraud in its creation.
- Breach of fiduciary duty. Claims against executors, personal representatives, or trustees for failing to act in the estate’s or its beneficiaries’ best interest, such as mismanaging assets, not following the terms of the will, or failing to disclose estate assets properly.
- Disputes over asset distribution. Arguments between beneficiaries about how to divide assets or whether certain assets were included in the estate.
- Trust disputes. Disagreements over the interpretation of a trust, the actions of the trustee, or the distribution of trust assets.
Probate litigation can be time-consuming, costly, and emotionally charged. It can potentially delay the distribution of assets and create tension among loved ones or business partners.
How to File for Probate in Florida
Florida probate proceedings follow specific steps outlined by state law. It begins with filing a petition in the circuit court in the county where the deceased person resided:
- File the petition. The petition requests the court to admit the will to probate and appoint a personal representative to administer the estate.
- Appointment of the personal representative. The court will appoint a personal representative, either as named in the will or as determined by Florida law if there is no will.
- Inventory of assets. The personal representative must identify and inventory the deceased person’s assets, including real estate, bank accounts, investments, and personal property.
- Notify creditors. State law requires that the personal representative publish a notice to creditors in a local newspaper, notifying them of the probate proceedings and the deadline for filing claims against the estate. Creditors must then file their claims against the estate within a specified period, usually three months from the notice publication date.
- Payment of debts and taxes. The estate may be subject to federal or state estate taxes, depending on the estate’s value. The personal representative is responsible for filing any necessary tax returns and paying any taxes owed.
- Distribution of assets. Once all debts, taxes, and expenses are paid, the remaining assets are distributed to the beneficiaries according to the terms of the will or Florida law if there is no will.
Seek the advice of a Florida probate lawyer if you have any questions or need help with the probate process.
When Does a Probate Case Need to Be Litigated?
When conflicts arise during the probate process in Florida, litigation may be necessary to resolve disputes and ensure fair and proper distribution of the estate. With the assistance of an experienced probate lawyer, you can minimize the costs and time associated with probate litigation while enforcing and protecting your rights.
Disputes Among Beneficiaries
Beneficiaries may dispute the will’s validity if they believe:
- The testator improperly executed the will, meaning they failed to follow the requirements set by law;
- The testator lacked the mental capacity to make a will, meaning they were not of sound mind;
- Someone unduly influenced the testator to create the will; or
- Fraud was involved in the will’s creation.
Beneficiaries may also disagree over the distribution of assets, especially if the will is unclear or if there are questions about the deceased person’s intentions.
Creditor Disputes
Creditors may challenge the validity or priority of their claims against the estate, leading to litigation to determine the amount and order of payment. In these situations, the personal representative may need to defend against fraudulent claims made by individuals seeking to benefit from the estate unlawfully.
Personal Representative Disputes
Beneficiaries or creditors may seek the removal of the personal representative if they believe they are not fulfilling their duties or are acting inappropriately. A common allegation is that the personal representative has breached their fiduciary duty by mismanaging assets, failing to account for estate transactions, or engaging in self-dealing.
Incapacity or Undue Influence
Individuals may contest a will based on claims that the deceased person lacked the mental capacity to make a will or that the making of the will was the result of undue influence.
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Florida Probate Litigation Process
Probate litigation in Florida typically begins when a party files a petition or complaint with the probate court outlining their claims or objections. The proceedings may involve various hearings, motions, and discovery processes to gather evidence and information relevant to the case:
- Initial petition. The first step in probate litigation is where a party formally submits a petition or complaint to the probate court outlining their claims or objections regarding the estate. This document initiates the legal process and sets forth the issues in dispute.
- Summons. After filing of the petition or complaint, the court issues summons or legal notices to notify all interested parties, including beneficiaries, heirs, and creditors, of the pending probate litigation. These notices inform the parties of their rights and obligations in the case.
- Hearings, motion, and discovery. Probate litigation involves various court proceedings, including hearings to address legal issues or disputes, motions filed by parties to request specific actions or rulings from the court, and discovery processes to gather evidence and information relevant to the case.
- Guardian ad litem. In cases involving minor or incapacitated beneficiaries, the court may appoint a guardian ad litem to represent their interests during probate litigation. The guardian ad litem advocates for the best interests of the minor or incapacitated individual.
- Trial and ruling. During trial, both parties present their arguments and evidence, and the court decides based on the facts and applicable law. The court’s decision is binding and resolves the issues raised in the probate litigation.
This formal legal process aims to resolve disputes and ensure that the deceased person’s wishes are followed according to the law. During probate litigation, the parties may attempt resolution of their differences through mediation or settlement negotiations.
Seek Legal Help From A Probate Lawyer
Navigating the probate process in Florida can be daunting, especially when litigation is involved, and having an experienced attorney’s help is crucial. Florida probate laws are complex and challenging to interpret without legal experience.
Mistakes in probate proceedings can lead to delays, disputes, and additional expenses. An attorney can help you avoid these pitfalls and ensure the process runs smoothly. Whether you’re a beneficiary, creditor, or personal representative, an attorney can protect your rights and ensure your voice is heard in the probate process.
Contact BrewerLong
If you have questions or trouble with the probate process in Florida, the team at BrewerLong is here to help. Our attorneys have over ten years of experience and are proud to serve Floridians seeking legal assistance. Give us a call or fill out our online contact form to set up a consultation.
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