The court procedure of administering a will is referred to as probate. While some probate cases may end in lawsuits, the majority of probate cases are entirely of an administrative nature. A probate court supervises the process to see to it that all legal requirements are completed and the decedent’s will are followed.
Three Types Of Probate In Florida
There are three forms of probate in Florida. Each of the following three types of probate processes is described below.
Formal administration, commonly known as formal probate, is the most prevalent type of probate process. This standard process occurs in the Circuit Court of the county where the deceased lived before passing away.
The procedure begins when a person dies and the trustee of the will, or any interested individual, requests to be designated as personal representative of the decedent’s assets. The beneficiaries specified in the will are then notified and given the opportunity to express formal objections, if they wish to do so.
This type of probate is available when the total worth of the property or assets of the testator being probated is worth $75,000 or below. Summary Administration may also be applied when a person dies or is presumed dead for more than two years. This method of administration begins with the submission of a Petition for Summary Administration, signed by a surviving spouse or beneficiaries. In essence, this is a sped-up form of probate.
Disposition Without Administration
As the phrase “without administration” implies, this procedure includes avoiding the probate hearing altogether owing to a set of conditions. It is crucial to remember that this option is only accessible if the deceased person has not left any property and their available assets for probate are worth lower than the value of final costs after probate.
There are various steps involved in probating a will in Coral Gables, FL. Following these steps provides a less stressful experience and a smoother process.
Submitting The Will To A Probate Court
The person in charge of the will must submit the document to the Florida Circuit Court in the county where the testator lived at the time of death. For instance, if the testator died in Court Gables, FL, the will must be filed with the Dade County Court.
Requirements For Filing A Will In Florida
For a will to be declared legally binding in Florida, several requirements must be met. The testator, witnesses, and personal or legal representatives must all adhere to these procedures.
- It must be written. Oral declarations, known as nuncupative wills, or handwritten wills from a grantor without witnesses, called holographic wills, are not recognized as legitimate wills in Florida probate courts.
- Must be created by a competent individual. A will produced by a person who is not of sane mind or who is a minor, unless considered as an emancipated minor, is not acknowledged by Florida law.
- There is no need for formal nomenclature or defined documentation. Florida does not impose any particular forms, wording, or language for a will to be legitimate as long as it is performed in accordance with the legal requirements.
- The will has to have the signature of the testator. If the testator has difficulty holding a pen, they may create a simple symbol, mark, initials, or letter that serves as their signature.
- At least two witnesses must sign the will. The witnesses must affix their signature on the will in the presence of the testator. Any competent individual, even a family or someone who stands to gain from the provisions of the will, may act as a witness. However, it’s recommended that those listed in the will should be excluded as witnesses as this might create its own difficulty in the domain of disproportionate influence.
- The will must be changed or repealed. A future will or codicil can change or entirely cancel a will. A codicil is a document that gives instructions or modifies a will. The prior will does not have to be expressly renounced in a later will or codicil, but it might be invalidated purely due to a discrepancy in the previous will’s wording. A codicil must follow the same legal procedures as a will to be valid.
- A will must be challenged. Any clause in a will that attempts to deter any interested party from disputing the will, including punishing a person through disinheritance or other estate-related processes, is unenforceable. Any effort to challenge the legality of a will, however, must be made before the testator’s death.
- Working with a probate attorney. While a probate attorney is not required to draft a will, there have been several issues arising from creating wills online. An attorney can help you articulate your preferences and ensure that you understand how everything fits together.
Filing Of Petition For Administration
The Petition for Administration is intended to lay forth the deceased’s fundamental details. This includes the testator of the will’s latest address, date of death, and intestacy structure. For a probate without a will, a basic family structure must be submitted. This document initiates the probate process.
This petition specifies the location of the court where the probate proceeding will take place. It also provides the petitioner’s best estimate of the value of the testator’s assets. If the estimated value of the assets is below or above the actual value, the probate court makes the necessary adjustments. The actual value of the decedent’s assets can be assessed through an inventory.
The Petition for Administration also lists the beneficiaries of a will or the heirs entitled to a part of the probate assets. Probate without a will shall be based on the family structure and regulations of the intestate succession regulations.
Designating A Personal Representative
The designation of a personal representative is the next stage. This person is in charge of assembling and dividing the decedent’s assets. The court appoints them to supervise the execution or probate of the decedent’s estate. The personal representative is crucial in wrapping up the decedent’s assets.
The Roles Of A Personal Representative In The Probate Process
Acting as the personal representative entails a great deal of responsibilities. They have a fiduciary obligation to handle the estate in accordance with the terms of the testator’s will and Florida law.
- Inform all beneficiaries and concerned parties that the will has been probated.
- Identify and take control of all identified assets of the testator.
- File tax returns and tax dues.
- Sell assets to pay estate claims.
- Settle all outstanding debts of the testator.
- Manage the assets of the grantor while the will is being implemented.
- File the required documents with the probate court.
- Divide and distribute the remaining assets of the decedent to the beneficiaries.
- Prepare and present a final and comprehensive accounting of the decedent’s assets to the probate court.
Most personal representatives seek the assistance of a probate lawyer to guide them through the procedure. Otherwise, people with no probate background would find the procedure too onerous. An experienced lawyer from The Estate Plan can help you avoid problems and save time, effort, and money.
Checking The Legality Of The Will
The probate court must ensure that a will is carried out in conformity with Florida law. The will must have the signatures of all concerned parties, duly notarized, and submitted without undue influence. This can be accomplished at various stages of the probate procedure. The personal representative of the deceased must also issue a Notice to Creditors ASAP. More about our probate administration services.
Give Notice To Creditors
The Notice to Creditors is the standard notification procedure in a probate process. It gives creditors a chance to learn about the decedent’s passing and take part in the settlement of debts throughout the probate process.
This stage is crucial because it guarantees the creditors that they can assert claims. The Notice to Creditors must appear weekly for two weeks in a row in local newspapers having a wide readership in that county. Following the initial publication of this notice, the court must receive proof of publication within 45 days.
Account For All The Assets Of The Decedent
The personal representative is responsible for accounting for all assets of the testator. This involves keeping track of all expenditures and issuing receipts for all relevant transactions. Once all assets are accounted for, all concerned parties are notified. The parties are given 30 days to review the will and file a dispute. The probate court will convene a final hearing to approve the accounting of the testator’s assets after 30 days.
File A Petition To Discharge
Following the completion of accounting, the personal representative files a final petition for discharge of the estate. When all assets have been divided and all obligations have been paid, the probate court issues an order to officially close the estate.
There are three types of probate administration in Florida. This comprises formal administration, summary administration, and, in rare cases, disposal without administration. Most probate cases handled by probate courts in Florida fall under formal and summary administration.
When a person dies without establishing a will, or when there is a contest over trusts, wills, or guardianship, a probate lawyer is also necessary. It is essential to seek the advice of a qualified and experienced probate attorney if you have questions regarding Florida probate laws and procedures or need assistance with litigation or probate administration.
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