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- Advising fiduciaries regarding their obligations and duties
- Preparing all probate documents and handling all probate court proceedings
- Assisting fiduciaries to gather, preserve, and value assets
- Addressing issues regarding the valuation of assets
- Handling audits of any tax returns
- Post-mortem planning (including the use of disclaimers)
- Assisting fiduciaries in the preparation of fiduciary accountings, the distribution of assets, and the funding of trusts
- Addressing real estate, business, tax and other related issues
The administration and settling of a Florida Probate Estate can be more complex than probate administration in any other state. I have over three decades of legal experience handling estate administration and litigation in Sarasota, Manatee, Lee, Charlotte, Desoto, Collier, Pinellas, and Hillsborough County Florida. Florida Probate Administration is a court-supervised process for identifying and gathering a deceased Florida resident's assets, paying his or her federal income and/or estate taxes, creditor claims and expenses of administration, and distributing the decedent's assets to their beneficiaries. Florida Probate Estate Administration (Formal or Summary) is necessary when a Florida resident passes away owning any of the following assets: (i) bank account in his or her sole name; (ii) life insurance policy payable to his or her estate; and (iii) real estate titled in the sole name of the decedent (unless it is homestead). Florida Probate Administration (Ancillary Administration) is also necessary when a non-Florida resident passes away owning real property in the state of Florida. When a Florida resident passes away with a Last Will and Testament the process is known as "Testate Administration." If the Florida resident passes away without a Last Will and Testament the process is known as "Intestate Administration." There are two distinct types of probate administration under Florida law: Formal Administration (probate assets valued in excess of $75,000) and Summary Administration (probate assets valued under $75,000).
FLORIDA PROBATE - FORMAL ADMINISTRATION:
The Florida Probate Administration process begins with the filing of the deceased Florida resident's original Last Will and Testament (“Will”) with the appropriate Florida Probate Court and the preparation and filing of a Petition for Administration (the “Petition”). The Petition requests the Florida Probate Court to: (i) open a probate estate for administration of the assets of the deceased Florida resident, (ii) accept the Will (if any), and (iii) appoint a Florida personal representative (by issuance of Letters of Administration). After the Letters of Administration are issued, all known beneficiaries and creditors receive notice of the filing of the Florida probate proceeding. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. The Florida Probate Estate Administration process also involves identifying and securing estate assets and determining which tax returns the estate is required to file. A list of all assets in the Florida Probate Estate and their values must be timely filed with the Florida Probate Court in the form of an inventory. Once the Florida Personal Representative or the Florida Probate Court determines that all costs of administration and valid creditors' claims have been paid, the next step is distribution of the Florida probate assets to the beneficiaries named in the decedent’s Will. Once completed, the Florida Personal Representative will present either a formal accounting or waiver(s) to the Florida Probate Court. The court reviews the file, and if all requirements have been met, the Florida probate judge will sign an order discharging the personal representative. This order effectively closes the Florida probate estate.
FLORIDA PROBATE - SUMMARY ADMINISTRATION:
A simplified Florida probate estate proceeding which may be utilized when the value of the entire Florida probate estate does not exceed $75,000 or the deceased Florida resident has been dead for more than two years. In a Summary Administration proceeding, the Florida Probate Estate must not be indebted or provisions for payment of the debts must be made. Alternatively, if the Florida probate assets are "exempt" then all known creditors are entitled to notice. If the probate Petition is signed by all interested parties (usually all beneficiaries of the estate), a hearing on the Petition will not be required. If a hearing is not required, the Florida probate proceeding can be finalized and an Order of Summary Administration entered in a relatively short period of time (perhaps one to two weeks). A certified copy of the death certificate should accompany the Petition. The decedent's Will, if any, must also be filed with the Petition and, in the case of a will which is not self-proving, proved and admitted to probate. The funeral bill marked paid must also be filed.
FLORIDA PROBATE - ANCILLARY ADMINISTRATION:
When a Non-Florida resident passes away owning real property in Florida, an Ancillary Florida probate proceeding is required to be commenced to pass title to the Florida real estate on to his or her heirs. This process is handled simultaneous with the probate action in the decedent's state of residence. This proceeding can be handled through either formal administration or summary administration. In order to commence an ancillary probate proceeding in Florida the Florida Probate Court will require the following documents: (i) Certified copy of the decedent's death certificate; and (ii) Exemplified or authenticated copies of the following documents from the Domiciliary Probate Court: (a) Will, if there is one; (b) Petition for administration, or similar document; (c) Order admitting will to probate, if there is one; (d) Order appointing personal representative; (e) Letters of Administration, if still current; (f) A complete list of all assets individually owned by the decedent in the State of Florida; and (g) A list of the names and addresses of all the heirs and the relationship to the decedent.
INTESTATE FLORIDA PROBATE PROCEEDINGS:
A Florida intestate estate proceeding is required when a Florida resident dies without a Last Will & Testament. The Florida intestate will commence when any interested person (heirs or creditors) file a petition for administration with the local Florida probate court of decedent. The petitioner must state their interest in the estate, information about the last known address of decedent, names of known beneficiaries, a request for the court to appoint a Florida personal representative and finally in an intestate estate, a statement that after exercising reasonable diligence to locate any unrevoked wills, that none can be located. Under Florida laws of intestacy, the surviving spouse (if any) is entitled to preference in being appointed the Florida personal representative of an estate. If there is no spouse, then a majority in interest of the heirs may select the Florida personal representative. In either case, the court will make the final decision. Once the court makes that final decision, letters of administration are issued which state that the Florida personal representative has been appointed and qualified by the Florida Probate Court to handle the deceased’s Florida estate. The Florida personal representative must be represented by a Florida licensed attorney throughout this process.After the Letters of Administration are issued, the Florida personal representative must then serve this notice to all known beneficiaries and creditors. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. Any interested person who receives notice has three months to file an objection challenging the qualification of the appointed personal representative, the venue, or the jurisdiction of the court. Once the Florida Probate Court determines that all costs of administration and valid creditors' claims have been paid, the next step is to distribute the Florida probate assets via the Florida Statutes governing intestacy.
Florida probate administration fees may be charged as a percentage of the value of the estate (flat fee) or on an hourly basis. Unlike the vast majority of law firms, we offer our probate estate administration services on a LOW FLAT FEE BASIS. Most firms will tell you that they are going to bill you based on an hourly rate or that their fee will be determined on a percentage basis depending on the size of the estate. WHAT DOES THIS REALLY MEAN? It means that you might be in for a big surprise when the bill arrives. Likewise, on an hourly fee basis you won't know what you are actually going to pay until the estate has been completed. You will be entirely at the mercy of the attorney. What will a telephone call or simple letter from you attorney actually cost you. We take the surprise and fear out of the entire probate process.
Does a Personal Representative or Beneficiaries have to pay an estate’s creditors if there are insufficient funds? A Personal Representative, heir or beneficiary can’t be made responsible for the debts of an estate, without their consent.
How long does Florida Probate take? A Florida probate estates that is not required to file a federal estate tax return and is not involved in litigation, can typically be closed in between five and six months. A Florida probate estate that is required to file a federal estate tax return will remain open for two years. However, partial distributions may be made to the heirs and beneficiaries during the probate process, after all estate creditors and taxes have been first satisfied.
Who can be a Florida Personal Representative? A Florida personal representative can be a (i) spouse, (ii) parent, (iii) child, (iv) sibling, (v) close relative, or (vi) individual who is a Florida resident. Alternatively, a financial institution that is qualified to exercise fiduciary powers in Florida can serve as a Florida personal representative.
Is a Florida Personal Representative entitled to a fee for his, her or its services for the estate? A Personal Representative may earn a fee equal to 3% (approximately) of the probate estate for their work. The Personal Representative will also be reimbursed for all out-of-pocket expenses incurred in managing and settling the estate.
What happens if the Personal Representative does not fulfill his/ her/its obligations to the estate? A Personal Representative who fails to fulfill his/her/its duty can be held personally liable for any damages caused in the administration of the estate. Liability may arise from selling an asset without the authority to do so, or at an inappropriate price, improperly managing the assets of the estate, neglecting to file tax returns on time, failing to collect claims and moneys due the estate, distributing property to the wrong beneficiaries, etc. A Personal Representative may be responsible for paying for the loss out of his/her/its own pocket.
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Formal Administration - Summary Administration
Sarasota | Manatee | Lee | Charlotte | Desoto | Collier | Pinellas | Hillsborough
Marc J. Soss, Esquire
This website has been prepared for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask me to send you free written information about my qualifications and experience.