What Is Probate?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person, also referred to as the decedent, and paying the decedent’s lawful debts and distributing the decedent’s assets to his or her beneficiaries. There are two types of court supervised probate administrations under Florida law: formal administration and summary administration.
Formal administration is the most common form of probate in Florida. If an estate does not qualify for summary administration or one of the other alternatives to probate, it must be formally administered. Even if formal administration is not required, it may still be the best choice of Florida probate proceeding based on the circumstances of the case. In formal administration there is close court supervision of the collection and distribution of the decedent’s assets. The process unfolds in three stages: opening the estate, administering the estate, and closing the estate.
Summary administration is a shortened form of Florida probate that does not require the appointment of a Florida personal representative. Florida summary administration usually requires less time, effort, and expense than formal administration. There are two ways in which an estate can qualify for summary administration in Florida. For summary administration to be available: (1) the decedent must have been dead for more than two years, or (2) the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, must not exceed $75,000. Even if the estate meets one or both of these requirements, summary administration is unavailable if the decedent had a last will and testament that specifically directs formal probate.
There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances when the decedent left only personal property exempt under the provisions of Florida statutes, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness. The process is initiated upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that the case is appropriate for disposition without administration, the Court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
What Are The Top Misconceptions That People Have About Probate?
One common misconception is that you do not have to go through probate if the deceased had a will. Many people think you simply have to record the will to acquire the decedent’s property. This is not true. Unfortunately, dying with a Will (Testate) has no bearing on whether or not probate is necessary. A Last Will and Testament simply serves as instructions and guidelines for the proper administration of a probate estate.
Another concern we hear frequently is that the deceased’s home will be taken by creditors of the estate. In Florida, your homestead residence is heavily protected while you are alive and also receives protection from most creditors after you die if the property is left to members of your family. However, mortgage holders of record and the IRS can reach your homestead. Typically, if the only asset of the probate estate is the deceased’s homestead, you can usually proceed with probate administration with very little concern for creditors.
We also hear concerns that if you die without a will, the state will get your property. Having a will definitely provides you with more control over who inherits your assets and property, but you should not worry about the state claiming your property. As previously mentioned, if you die without a will, your estate follows intestate succession laws.
For more information on Probate In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (877) 315-5107 today.
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