What is probate?
Probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property either under a will or without one. Probate is a court supervised process that involves (1) identifying and gathering the assets of the decedent, (2) paying any debts of the decedent’s estate – creditors with claims against the decedent are allowed to present those claims for payment, and (3) facilitating the distribution of the decedent’s assets to the appropriate beneficiaries.
Why is probate necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to his or her beneficiaries and it is also necessary to complete the decedent’s financial affairs after his or her death.
Types of Probate?
In Florida there are two types of probate, there is (1) formal administration and (2) summary administration. In addition, there is also a non-court supervised administration proceeding called disposition of personal property without administration, this type of administration applies only in very limited circumstances. It can be used only when the decedent did not leave any real property and the only assets are either exempt from creditors’ claims or do not exceed the amount of the final expenses.
Summary Administration is a type of probate proceeding that is used for small estates. This option is available if:
- The death occurred more than two years ago, or
- The value of the probate estate, all the property that would have to go through the process, is not more than $75,000.00.
If these apply, the person who was nominated by the will to be the executor/personal representative, or anyone who will receive the property, must file a Petition for Summary Administration with the Court. The Court will then determine if the estate qualifies for summary administration, and if so, will issue an order to release the property to the people who are to inherit it.
Formal Administration is the most common form of probate in Florida. The process begins when an executor/personal representative is nominated through the will and will ask the Court through a petition to appoint him or her as the personal representative of the estate. The Court issues a Letter of Administration to give the personal representative authority to settle the estate.
The Court is generally in the same place in which the deceased was living at the time of death. All beneficiaries and heirs of the deceased must be given notice of the proceeding in order to have a chance to object. If there is a will, it also must be filed with the Court. Under the Court’s supervision, the personal representative will then inventory all assets of the deceased, pay debts and taxes, and distribute the remaining assets to the people listed in the will. After everything is distributed, the personal representative will file evidence with the Court and ask that the estate will be closed. To close the estate, the Court will issue an order and relieve the personal representative of his or her duties.
Disposition Without Administration
Also, when a deceased person leaves behind few assets, the Florida law allows for someone who paid for the final expenses, such as funeral and hospital bills, to be reimbursed from the assets of the estate. This can only be done when:
- The deceased person did not leave any real estate, and
- The only assets are either exempt from creditors’ claims or do not exceed the amount of final expenses