Florida probate: the ultimate guide
If you’re looking for information about probate in Florida, you’ve come to the right place. Read on for a detailed overview of probate in Florida, and to find out if you qualify for Florida’s simplified probate procedure.
Do you need probate in Florida?
Probate is a legal process that involves distributing a person’s assets and covering their debts and taxes after they die. Assets held or titled solely in the decedent’s name will generally go through the probate process before being distributed to the heirs or beneficiaries.
Examples of probate assets include:
- Single name bank or investment accounts
- Assets owned jointly as tenants in common (as opposed to joint tenancy)
- Art and collectibles
- A house in a single name
- An automobile in a single name
- Safety deposit box contents
Not all assets go through probate. Assets that automatically transfer to another person without a court order will avoid probate.
Generally, joint accounts and accounts or assets with beneficiary designations (e.g. life insurance and retirement accounts) will avoid probate. A properly funded revocable trust will also avoid probate.
Simplified probate procedures in Florida
Florida allows for a simplified probate procedure known as Summary Administration. You do not need an attorney for Summary Administration. To qualify for Summary Administration:
- The value of the estate must be equal to or less than $75,000, or
- The decedent must have been dead for more than 2 years. (Fla. Stat. 735.201).
Florida also has an exception for personal property. Certain personal property, valued up to $20,000 as well as two vehicles, can be transferred without probate administration (Fla. Stat. 735.301) and (Fla. Stat. 735.402).
If you have probate assets, and the assets do not qualify for the simplified procedures based on the descriptions listed above, then you will be required to go through the full probate process. In Florida, if the personal representative is the only beneficiary or heir, no attorney is needed, but if there is more than one heir or beneficiary an attorney is required. (Fla. Prob. R. 5.030).
Who is in charge of the estate?
If there is a will, a personal representative is named in the will to manage the probate estate. If the named personal representative is unable or unwilling to serve, then the next personal representative named in the will (called the successor personal representative) may serve. Note that sometimes the word “executor” is used instead of “personal representative”.
If no one named in the will can serve as a personal representative, then the beneficiaries of the will must appoint a personal representative. The beneficiaries must either agree unanimously or reach a majority vote. If not, the probate court decides.
Similarly, if there is no will, the heirs at law must decide and agree on who will administer the estate. The “heirs at law” are usually the surviving spouse, or if there is no surviving spouse, then the children of the deceased, with certain exceptions for blended families. The heirs at law must either agree unanimously or reach a majority vote.
To demonstrate that someone is in charge of the probate estate, the court issues Letters Testamentary (if there is a will) or Letters of Administration (if there is no will) to the personal representative. The personal representative shows the Letters as proof of their power to act on behalf of the probate estate.
Notice to creditors
Under Florida law, the personal representative “shall promptly publish a notice to creditors” and publication “shall be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.” Fla. Stat. 733.2121. General creditors have “3 months after the time of the first publication [in the newspaper] of the notice” to submit a claim or they are barred from collecting.
For certain creditors, the publication in the newspaper is not enough notice. For them, they are entitled to be served with a copy of the notice. Those creditors have “30 days after the date of service on the creditor” to submit a claim for payment, or they are barred from collecting. Fla. Stat. 733.702.
What do I need to get started on the probate process?
Before you file probate, there are a few things you need to get in order:
- A death certificate
- The will (if there is one)
- The names and addresses of the heirs or beneficiaries
The first step is generally to give notice to all the beneficiaries or heirs. If you are the one who either intends to manage the probate estate or you are named in the will to manage the probate estate (and you accept the position), it is your job to give notice and gather the signatures.
How long does probate in Florida take?
In Florida, most probates can be done in eight months to a year. Any litigation or fighting could extend the timeline considerably.
How much does probate cost in Florida?
Here’s an overview of the approximate costs of Florida probate:
- Court costs for filing fees will total approximately $345 to $450.
- Attorney fees vary. Hourly fees for attorneys can range from $150 to $300 per hour. For simple probate, where it does not look like fighting and litigation will occur, it’s probably reasonable to estimate attorney fees at a minimum of $2500. These fees are greatly reduced when you use EZ-probate and do probate on your own without an attorney, or when you use an attorney in our network. You can get started for free with our EZ-Probate Intake Form.
- A fee will sometimes need to be paid to the person managing the probate, which is usually a percentage of the probate estate, for example, 2%. (The fee is often waived.)
- If an asset in question has an uncertain value and needs to be appraised (such as cars or antiques), you will want to be prepared to pay an appraisal fee.
- Depending on the state that the property is in, you may need to pay an estate tax. Florida does not have a state estate tax. Furthermore, the federal estate tax only applies to multi-million-dollar or billion-dollar type estates and affects less than 1% of the country.
Want to get a head start on the probate process?
The first step towards getting probate opened is completing our online Intake Form. If you have already started it, you can always go back and finish it.
If you have questions, schedule a free consultation today.