- What is the probate process?
Probate is the process by which a person's assets are gathered, debts are paid, and the rest of the estate is given to the people who are entitled to it. In most counties in Florida, the probate system is run by a special probate division of the Circuit Court. One or more probate judges are in charge of this division.
- How do you start probate?
Any beneficiary or creditor can start probate, but usually the person named in the will as Personal Representative, also called the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, the Petition for Administration is usually filed by a close relative of the person who died who hopes to get something from the estate.
Who can serve as a person's personal representative?
The Personal Representative can be a bank or trust company that does business in Florida, a person who lives in Florida, or a spouse or close relative who does not have to live in Florida. Personal Representatives can't be people who aren't related to the person and don't live in Florida.
- How do you choose a personal representative?
If the person who died left a will, the person named as the Personal Representative in the will will take over, if they are eligible. If that person can't or won't be the Personal Representative, the person chosen by a majority of the beneficiaries in the estate will be. If there is no will, Florida law says that the surviving spouse can serve, or if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest will serve.
- Does the Personal Representative have to hire a lawyer?
In Florida, almost all probate estates require the Personal Representative to hire a Florida probate lawyer. Even though anyone can get the Florida probate forms, they are of no use to someone who is not a lawyer.
- How does the person in charge of your affairs get paid?
The Personal Representative gets paid based on a percentage of the probate estate's assets, which is set by Florida law.
- Does the family of a person who has died have a right to a share of the estate?
Florida law gives a family allowance to the surviving spouse and any minor children of the person who died. A surviving spouse can also choose to get 30% of the estate if they would rather have that than what was written in the will. A person who lives in Florida can cut adult children out of their inheritance for any or no reason. Of course, the adult children may be able to get help from the probate court if they can prove that someone else's influence caused them to lose their inheritance.
- What kinds of assets need to go through probate?
The assets that the person who died owned are subject to probate. Assets that pass by title, like real estate titled "Joint Tenants with Right of Survivorship" or bank accounts titled "Transfer On Death," do not go through the probate process. Assets that are passed on by naming a beneficiary, like life insurance or some retirement accounts, do not have to go through probate.
In some cases, though, assets that would normally pass by title or beneficiary designation may have to go through the probate process. This is especially true if a surviving spouse wants to take an elective share from the estate.
- How does the estate get split up if there is no will?
If a person dies without a will, Florida law says how their property will be split up.
If there is a surviving spouse but no direct descendants, the estate goes to the surviving spouse.
If there is a surviving spouse with lineal descendants and all of the lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $20,000 of the probate estate and one-half of the rest of the probate estate. The rest of the estate is split equally among the children.
If there is a surviving spouse with lineal descendants, but not all of the lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to half of the probate estate, and the descendants of the deceased share the other half of the estate equally.
If there is no surviving spouse and children, each child gets an equal share, and the children of a child who died get the share of their parent who died.
Florida law has more rules about how to divide an estate when there is no surviving spouse and no children or other descendants.
Who's in charge of paying estate taxes?
The Internal Revenue Code says that the estate tax is paid by the estate of the person who has died. Depending on the terms of the will, the estate tax may be paid only from the probate estate or also from a living trust, life insurance proceeds, and other assets that go directly to beneficiaries outside of the probate estate. The Personal Representative is the person who fills out Form 706. The Form 706 must be filled out and sent in 9 months after the date of death.
