By now you may have heard people talk about the legal process of Probating a loved one’s Estate. Hopefully, this article will help you understand some of the requirements of the Probate process as well as causes for a delay or additional probate costs that can generally frustrate you along the way.
Understanding the Probate Administration Process
Probate proceedings are a Court-supervised process to locate the assets, pay the necessary creditors, and transfer the assets to the beneficiaries. This can be done with or without legal documents such as a Last Will and Testament. Probate is required when a deceased person owned assets titled in their individual name only (and did not list a beneficiary designation or payable on death designation before the time of death). Assets include real estate, bank accounts, personal property, retirement accounts, life insurance policies, vehicles, and more.
Appointment of Personal Representative
The first step of the Probate process is to have a Personal Representative appointed. If your loved one had a Last Will and Testament, it will name the individual they would like to Probate their Estate.
If there is no Last Will and Testament, the surviving spouse is the legal heir who has a preference in appointment. If there is no surviving spouse or the surviving spouse does not wish to serve, then the heir selected by a majority in interest of the heirs may be permitted to serve.
Even if an individual is named in a Last Will and Testament to serve as the Personal Representative, the individual does not have the authority to act on behalf of the Estate until the Court officially appoints the individual as the Personal Representative. Along with the Last Will and Testament, paperwork will need to be submitted to the Court identifying the Personal Representative, the deceased person, and the beneficiaries before the Judge will approve the individual to act as Personal Representative.
Creditor Period
Once the Personal Representative has been appointed, this triggers the second step of the Probate process. This is commonly called the Creditor Period and will last for 3 months. During this period a public Notice is published in the local newspaper which will allow any creditor to file a claim regarding outstanding debts against the Estate.
All known creditors will be notified during this period as well. Once the 3 month period has expired, almost all creditor claims regarding unpaid debts are barred as being untimely. During this period, the Personal Representative usually works to gather the assets and will have documents such as death certificates issued to help with this process.
Notice of Administration Period
Another part of the second step of the Probate process involves the Notice of Administration. This is a document that is served on all interested parties in an Estate. Interested parties can include beneficiaries of the Estate, children that were disinherited, a surviving spouse that was not mentioned in the Last Will and Testament, and any other party the Court deems as interested.
This period also runs for 3 months and allows individuals to object to any part of the Probate process. For example, if a surviving spouse was not mentioned in the Last Will and Testament, the spouse can file what is called an Elective Share Action against the Estate. Florida Statutes state what a surviving spouse is entitled to as part of an Elective Share. This event will also likely slow things down and delay the Probate process.
Homestead Property
Once the Creditor Period has expired, we can proceed with transferring the Homestead Property to the beneficiaries of the Estate. The Court generally will not permit the Homestead property to be transferred until after the Creditor Period as any creditor that may file a claim may be considered an interested party and may be required to be informed of the transfer. Even though the property is protected from most creditor claims, pursuant to Florida Statutes, creditors may have a right to information regarding the transfer. This process can take about a month or longer depending on the Court scheduling as well as any other filings such as the Elective Share.
Distribution of Estate
Once the Homestead Property, if applicable, has been transferred, we can begin the process of preparing the Estate for distribution. This is where the assets will be divided between the beneficiaries pursuant to the Last Will and Testament or to the rightful beneficiaries pursuant to the Florida Statutes if there is no Last Will and Testament. During this time, it will be determined if an Accounting of the Estate will be required.
If so, this process can be lengthy as an accounting will need to be created that will account for all transactions that occurred, payments that were made, and money that the estate received or paid out after the passing of the loved one. It is possible to proceed without the accounting if all beneficiaries are in agreement. Proceeding without an accounting will speed up the process of closing the Estate.
Discharging the Personal Representative
Once the creditors have been paid, distributions have been made, and all assets of the Estate have been transferred, we can then petition the Court and ask that the Personal Representative be released from their duties and the case be closed. At this time, the Judge will do a final lookback of the case and may request additional documentation or amendments to previously filed documents.
As you can see from the above steps, Probate Administration is generally viewed as a lengthy process. We often quote that the entire process can take 9 months to a year from opening the Probate until the Personal Representative is released and the Estate closed. However, the length of each case varies and depends on many factors including the number of assets, how much estate property is being distributed, the number of beneficiaries, the relationship between the beneficiaries, and the number of creditors.
If you have legal questions and/or would like to know how Probate can be avoided, please contact our estate planning attorney’s office to schedule an appointment to discuss estate planning, living trusts, estate assets, and more.