Probate

For an experienced lawyer who can help you understand and efficiently navigate the probate process, call or contact the Holly Hill law office of Fred B. Share.

Our firm offers probate services to clients throughout the state of Florida.

Understanding Florida's Probate Process

Probate is essentially a court-supervised process for transferring assets from decedents to lawful beneficiaries. It can be a complicated, expensive and time-consuming process. Probate doesn't have to be any of those things, however, and it may not even be required in some cases.

It's also important to recognize that not every asset has to pass through probate. Estate planning options for example, can allow a person to effectively transfer assets and avoid probate altogether. These options include payable on death accounts, Lady Bird (enhanced life estate) deeds, and beneficiary designations on life insurance policies or 401(k) plans. A revocable living trust can be useful in accomplishing this goal as well.

Florida estates that require probate court supervision are generally administered through either the "summary estate administration" or "formal estate administration" process. Summary administration is faster, less complicated and can be used in most cases. The formal administration process, as the name implies, is more involved and may take more time to complete. In either case, the basic steps often include:

• Filing the petition to open a probate case with the proper court
• Getting the will admitted to probate (if there is a will)
• Asking the court to appoint a personal representative
• Notifying beneficiaries named in the will (or statutory heirs if no will)
• Publishing notice to creditors
• Gathering, inventorying and taking steps to preserve the assets of the estate
• Obtaining professional appraisals for assets (if necessary)
• Paying legitimate claims made by creditors
• Filing tax returns (if necessary) and paying taxes due
• Distributing the remainder of the decedent's assets in accordance with the will or Florida's intestate succession statutes
• Closing the estate

What if there is a Revocable Trust?

If a decedent established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” the trustee may be required to pay expenses of administration of the decedent's probate estate, enforceable claims of the decedent's creditors and any federal estate taxes payable from the trust assets.

The trustee of such a trust is always required to file a "Notice of Trust" with the clerk of the court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust, and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks which must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of his or her gross estate for purposes of determining federal estate tax liability.