A Winter Garden Lawyer Answers Common Questions About Florida Probate
At C.J. Hilliard Law, P.A., we assist personal representatives and families in the Orlando area with all aspects of the probate process. On this page, we’ve answered some of the most common questions asked by prospective clients.
Do I need to go through probate?
Not necessarily. If all of the decedent’s property has passed to others through alternative means (such as joint ownership or beneficiary designations), there is usually no need for probate. There are some instances, however, when probate cannot be avoided.
Is probate the same as estate administration?
Not exactly. Estate administration is the broader process of settling a decedent’s legal and financial affairs after death. Probate is one component of that process, specifically the court-supervised procedure for validating a will, paying debts and distributing assets that require court oversight to transfer ownership.
Personal representatives carry out several additional responsibilities under estate administration beyond just validating the will, including:
- Locating and securing the decedent’s assets
- Obtaining date-of-death valuations for estate property
- Notifying beneficiaries and known creditors
- Filing the decedent’s final income tax return
- Paying valid debts and creditor claims
- Transferring nonprobate assets, such as life insurance proceeds, to named beneficiaries
- Closing or retitling financial accounts
- Managing estate property until final distribution is complete
Recognizing how probate fits within the larger context of estate administration helps you understand the full scope of your responsibilities as a personal representative.
Why can’t I show the will to the bank and get access to the decedent’s accounts?
A will is not a self-executing legal document. To be given legal effect, a will must be admitted to probate by the court.
Before it has legal effect, it must first be “proven” in probate. As part of this process, it must be demonstrated that the original copy of the will was signed under the requirements of Florida law and was the decedent’s last will. With such proof, a bank would know whether the will presented was, in fact, the proper and last will of the decedent.
Does probate allow the government to keep part of the estate?
The only money the government receives in a probate proceeding is the filing fee, which is currently $300 to $400. Probate does not cause additional taxes or fees that would not otherwise be imposed on the estate.
What happens to the debts of the decedent in probate?
The debts of a decedent are not forgiven upon death. Any actual or potential creditor of the decedent is an interested person in the probate proceeding and entitled to receive a notice to creditors. This notice informs the creditor that they have a limited time to file a claim against the estate. The notice is also published in a newspaper to reach creditors who may not be known to the personal representative.
If a creditor does not file their claim within the allotted time, the claim is forever barred. When a claim is filed, it can be contested and the dispute will be resolved in a lawsuit. When there is no objection to the claim, that creditor is entitled to be paid from nonexempt assets in the order of priority established by law.
Specific property of the decedent, such as the home, is exempt from the claims of creditors, and certain creditors – funeral bills, for example – have a priority in payment. All of these matters are sorted out during the probate administration.
Does probate take years to complete and cost a fortune?
It can, but that result is far from typical. For most estates, the probate process lasts between two weeks and eight months. The expense varies greatly but is modest for most estates.
The administration of a decedent’s estate is only as complex, time-consuming and expensive as the affairs of the decedent at the time of death. If a probate administration is extended or expensive, it is likely because some disputes or complications have arisen related to factors other than the probate proceeding itself.
Get Straightforward Answers To Your Probate Questions
For knowledgeable, case-specific advice and guidance, contact C.J. Hilliard Law, P.A., today. You can call our office in Winter Garden, Florida, at 407-255-7607 or submit an online contact form.