Probate

Probate is a legal procedure which handles the transition of assets and property afte a person’s death.

Regardless if you leave a Will or you don’t, all your possessions, property and financial accounts will go through a court-controlled process.

Probate is expensive, time consuming and stressful. Your close ones are required to hire a lawyer and go through the extensive procedures before finally acquiring their heritage.

To make matters worse, probate is open to the public. Any creditors who have a valid claim against the property of the deseased, will be given a chance to defend it and potentially win.

Dialy & Toups is a specialised estate planning and elder law firm. If it’s not too late, we can suggest alternatives that will bypass the probate procedure, transfer the assets cost effectively and protect it against any claims.

Contact us for a free consultation to find out more.

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What is Probate?

Probate is a court controlled mechanism where the court transfers assets from someone who died (decedent) to the decedent’s beneficiaries. The beneficiaries are those listed in the decedent’s Will. When the decedent dies with a Will we refer to this as the decedent dying testate.

If the decedent died without a Will (intestate), then the decedent’s beneficiaries will be determined by the Florida Statutes. Usually, these will be the closest family members – spouse, children, etc. This means that without a Will your assets could pass to your crazy Uncle that you haven’t talked to in twenty years.

Assets that could pass through a decedent’s Will are personal property (your 2005 VW Bug), real estate, financial accounts, and even business interests (such as an LLC).

When do these assets pass through the Will? They pass through the decedent’s Will when the assets are titled solely in the decedent’s name. This often happens with real estate because there are limited options to have real estate avoid probate.

This means just having a Will – even though every person should have a Will — is often not a great way of setting up your estate plan.

A Will is a one-way ticket to probate

Probate in Florida is expensive, time-consuming, open to the public, and is often very stressful for your family and loved ones. Attorneys love it because we make a lot of money off probate (as you’ll see below).

Probate can be completely avoided with proper estate planning done by a competent estate planning attorney. Yes, this also means avoiding LegalZoom.

Proper estate planning – either by setting up a Trust, executing a Lady Bird Deed, or having your assets pass through beneficiary designation – allows your beneficiaries to receive assets without much cost or headache and avoids the courts altogether.

Different Types of Probate in Florida

The two most common types of probate in Florida are summary administration and formal administration.

In a summary administration, a petitioner petitions the court to probate the asset or assets of the decedent. A petitioner is much different than an executor/personal representative. The petitioner does not have any power granted to them by the court and are very limited in what they can and cannot do.

Summary administration is often the preferred method of probate in Florida because it is usually less expensive and much less time consuming than a formal administration. Summary administrations are used when probate assets total less than $75,000. There are some exceptions when assets are above $75,000 (e.g. homestead real property) or when the decedent has been deceased for more than two years.

A summary administration will take anywhere from one to four months – the length of a summary administration varies depending on whether there are any creditors (e.g. medical bills), how quickly the petitioner and beneficiaries sign documents, and how busy the court is.

A formal administration happens when there are more than $75,000 in probate assets or when it is necessary for there to be an executor/personal representative.

In a formal administrative an executor/personal representative is appointed to administer the decedent’s probate estate.

If the decedent died with a Will, then the executor/personal representative will most often be the person who was nominated to serve in the Will. If there is no Will, then the court will decide who will become the executor/personal representative based on the Florida Statutes.

What Powers Does the Personal Representative Have?

If enrolled in a Medicaid programm, it will pay for the following services in every state in the country.

The personal representative gathers the decedent’s assets that must be probated (pass through the Will)

Once the decedent’s probate estate assets are gathered, the personal representative has the power to hold the assets, invest the assets, continue carrying on the decedent’s businesses (if applicable), and dispose of any personal property (your 2005 VW Bug).

The personal representative will also identify any valid creditors and pay any valid debts of the decedent, including funeral expenses and other miscellaneous expenses

The personal representative will then distribute assets to the decedent’s beneficiaries and close the probate.

A personal representative has significant authority over the deceased’s assets. It is very important that the personal representative named in your Will is someone that you both trust and is good with making financial decisions.

Do I Need an Attorney for Probate?

Florida law requires that a personal representative be represented by a Florida licensed attorney. This means that an attorney must be hired when there is a formal administration.

While an attorney is not required for a summary administration, it is highly likely that the petitioner will need to hire an attorney. The probate process can be extremely complex and court formalities must be followed so that the decedent’s probate assets are protected, any valid creditor claims are paid, and the correct beneficiaries receive what they are entitled to receive.

How Much Does Probate Cost?

  • 2016 Dodge Minivan worth $15,000
  • Homestead Residential Property worth $300,000
  • IRA worth $200,000
  • Income of $2,500 per month from social security
  • Small pension

The two primary costs for probate in Florida are court filing fees and attorneys’ fees.
Court filing fees depend on the county that has jurisdiction over the probate administration.

For example, below is a table of the fees charged by Sarasota County, Florida.

SARASOTA COUNTY PROBATE FEES

For opening of any estate of one document or more, including but not limited to:
1. Petitions and Orders to approve settlement of minor’s claims
2. To open a safe deposit box
3. To enter room and places
4. For the determination of heirs (if not a formal administration)
5. And for a foreign guardian to manage property of a non-resident
Note: This procedure is not for issuance of letters or orders of summary or family administration
$231
Notice of trust$41
Caveat$41
Petition and order to admit foreign wills, authenticated copies, exemplified copies or transcript of record$231
For disposition of personal property without administration$231
Summary administration less than $1000$235
Summary administration $1000 or more$345
Formal administration, guardianship, ancillary, curatorship, or conservatorship proceedings$400

While court filing fees are not expensive, attorneys’ fees can be very expensive. After all, it was attorneys who drafted the probate statutes.

There is a statutory fee schedule that is presumed to be reasonable. Essentially the schedule allows attorneys to charge 3% of the gross probate estate. That means that your $300,000 rental property could cost $9,000 in attorney fees.

Below is a table of the statutory fee schedule.

PROBATE ATTORNEY FEES

Estate ValueProbate Attorney Fees
Up to $40,000$1,500
$40,000 to $70,000$2,250
$70,000 to $100,000$3,000
$100,000 to $1 million$3,000 plus 3% of the value over $100,000
$1 million to $3 million$30,000 plus 2.5% of the value over $1 million
$3 million to $5 million$50,000 plus 2% of the value above $3 million
$5 million to $10 million$90,000, plus 1.5% of the value above $5 million
More than $10 million$165,000, plus 1% of the value above $10 million

Need any more evidence that attorneys drafted this statute? 

These fees are also only for ordinary probate matters. The attorney can also charge extra fees for any extraordinary work performed.

How Long Does a Probate Administration Last?

  • 2016 Dodge Minivan worth $15,000
  • Homestead Residential Property worth $300,000
  • IRA worth $200,000
  • Income of $2,500 per month from social security
  • Small pension

Probate length depends on whether the probate is a summary administration or a formal administration.

A summary administration will take anywhere from one to four months – the length of a summary administration varies depending on whether there are any creditors (e.g. medical bills), how quickly the petitioner and beneficiaries sign documents, and how busy the court is.

A formal administration can take anywhere between six to nine months. In a formal administration, a notice to creditors must be filed – this notice to creditors is a legal notice published in a local newspaper and gives any potential creditor 90 days to file their claim with the probate court.

Additionally, depending on the types of assets in the estate, there may be additional time needed for the personal representative to gather and preserve the assets.

You don’t have to do it alone!

Daily & Toups are professional estate planning attorneys. We’ve worked on hundreds of probate cases.

In many of occasions where the beneficiary is still alive, we have been able to avoid probate entirely by using certain legal tools and workarounds.

If you want to ensure your assets pass to your beneficiaries without going through court probate and facing severe financial burden, contact us. We’ll review your case and let you know what options you have.

Contact us for a free no obligation chat about probate and estate planning. We’ll explain the basics and go from there.

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