Probate and Trust Administration

Probate is the process of transferring ownership of assets from the person who passed away (the decedent) to the beneficiaries of the estate. It is important to note that probate is not always necessary. We work hard to counsel clients in estate planning around various tools that can avoid probate - like Life Enhanced Deeds (Ladybird Deeds) or using Payable on Death tools at financial institutions.

Testate versus Intestate

The first question in any probate consultation is, "Is there a Will?". If the answer is NO then the decedent passed "intestate" (i.e. without a Will). If this is the case we use the statutory rules to determine who will receive the decedent's estate. Generally it is straight forward, however when there are second marriages or no spouse and no children the determination is more difficult.

If the decedent had a Will then Probate Attorney John R. Nelson will review the Will to ensure it was executed properly. This is the first step. Next, the personal representative is identified and a determination as to Summary or Formal Administration will be made.

Summary versus Full Adminstration

There are two types of Probate to consider: Summary or Formal Administration. An estate qualifies for Summary Administration when the decedent has been deceased for more than two years or the value of the estate is less than $70,000. The time to finish a Summary Probate Administration is about 6-8 weeks.

On the other hand, Formal Probate Administration is required when the value of the estate is in excess of $70,000. A notice to known creditors will be sent and a publication to in the newspaper made for unknown creditors. This can cut off creditors to the estate. Remember, in Florida the homestead is protected from creditors. The time to complete a formal admministration is a minimum of 4 months but typically 6-8 months.

Guide to Probate Assets

During the consultation our attorney will discuss with the Personal Representative/Petitioner what assets need to be included in the probate and which assets do not need to be included in the Probate. Any asset that in the decedent’s name only, (meaning there is no named beneficiary or paid on death beneficiary) must be included in the Probate. Any real property or homestead property that does not reference tenants by the entirety or joint tenants with rights of survivorship must be included in the Probate.

There are times our client’s grief limits his/her memory to provide a complete list of assets or sometimes our client will discover other assets after they have spoken to the attorney so they will contact our firm to include the discovered assets.