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It's The Law: Probate Is Not A Daunting Procedure

Question: My mother recently died and her Will appoints me to administer her estate. Can you give me a brief outline of Florida probate?

Answer: Florida probate procedures are governed by Chapters 731 through 733 of Florida Statutes and the Florida Probate Rules. The first step is filing the Will with the Clerk of Court. The custodian of the Will must deposit it with the Clerk within 10 days after receiving notice that the Testator died. The next step, which can be done simultaneously with filing the Will, is to file a Petition For Administration of the estate.

The Petition For Administration can be filed by any interested person, even a creditor. An interested person is anyone who is a beneficiary of the estate, a creditor of the decedent or who otherwise may be affected by the probate proceeding. The Petition For Administration usually goes direct to the judge, and the judge reviews the Petition to be sure that the person filing it is qualified to serve as Personal Representative and that the Petition is otherwise in order.

Notice of the Petition For Administration is not required to anyone at time of filing, unless the petitioner asks the court to appoint a personal representative who is different than the person otherwise entitled to priority (for example, the person nominated by the Will). But, if notice of the Petition For Administration is properly served on interested parties, they must file objection to the validity of the Will or the Petition For Administration within 20 days after receipt of the notice. Most of the time, notice is not needed because the petitioner is appointed by the Will as the personal representative and the interested family members either get along or are happy they do not have to do the personal representative’s job.

After review of the Petition, the judge will issue an Order admitting the Will to probate. Usually, the Order requires the personal representative to file a bond. The bond is not particularly expensive, and in most cases only costs a few hundred dollars. After the bond is posted, Letters of Administration are issued and the personal representative then has authority to deal with the estate assets.

If the Will is not self-proving, Oath of one of the signing witnesses must be filed with the Will. If the Witnesses are not available, probate can still be started, on a slightly more cumbersome procedure is followed.

After Letters of Administration are issued, the personal representative is then required to serve Notice Of Administration on all interested parties which advises them they have three (3) months within which to challenge the Will or the qualifications of the personal representative or jurisdiction of the court and deadlines for filing claims to exempt property, such as a widow’s elective share. Elective share is a share of the decedent’s estate which a widow/widower may claim in lieu of whatever the Will provides. It is intended to ensure some minimal distribution to a surviving spouse.

The personal representative is also required to properly serve notice on all known creditors and to publish notice in the newspaper that probate has been opened. Creditors have thirty (30) days from receipt of actual notice or three (3) months from date of first publication, whichever is later, to file claims with the court. If claims are not timely filed, they are barred. If a claim is filed, the personal representative has until the later of thirty (30) days after the timely filing of a claim (or amendment) or four (4) months from date of first publication of notice in the newspaper to object.

Objection to a claim means the claimant must file an action to enforce the claim within thirty (30) days or it is barred. Alternatively, the personal representative can agree to extend the time, for such claims as medical expenses that the personal representative believes should be covered by insurance, to allow time for the personal representative to work out payment issues.

During probate, the personal representative is required to manage the assets, such as real property and investments, pay expenses of management and otherwise operate the estate as if it is a business. As part of this management, the personal representative is required to file an Inventory with the court within sixty (60) days of taking office, and to serve copies of the Inventory on all interested parties.

The personal representative is also required to attend to non-probate but death related matters. The personal representative is obligated to file the decedent’s last income tax return, an estate tax return if the estate is over 3.5 million and an estate income tax return if the estate has income.

If no objections are filed, the court will enter an Order Of Discharge and the matter is concluded.

The outline in this article is a bare-bones simplification. There can be many twists and turns in probate, conflicts and opportunities to stream-line and save expense. Most probate requirements are technical and difficult for the average person to understand. For all of these reasons, you will be well served to retain an experienced estate attorney at your earliest opportunity.

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