Probate

What Is Probate?

When someone passes away they often leave behind money, property, and other valuables. Probate is a court-supervised process for identifying and gathering these valuables, also known as assets, of the a deceased person, known as the decedent, paying remaining debts, and distributing the remaining property to the people who will inherit it, also known as beneficiaries. In general, the remaining valuables or assets are first used to pay the cost of the probate proceeding, then are used to pay outstanding debts, and the remainder is given to the beneficiaries. Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the Court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law. Probate serves to wind up someone’s financial affairs after his or her death and ensures that the decedent’s debts to creditors are paid in an orderly fashion. During Probate the Judge will rule on the validity of the decedent’s will, or if the decedent died without a will, the Judge will consider evidence, confirm the identities of the decedent’s heirs, and determine who is entitled to receive the decedent’s probate estate.

What Are Probate Assets?

Probate assets are the valuables that are owned only by the person who passes away (the decedent) or are owned jointly by both the decedent and someone else but there is no agreement in place regarding who owns the asset if one of the owners passes away.

Examples of probate assets include:

• A bank account or investment account in the sole name of the person who passes.

• A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.

• Real estate titled in the sole name of the decedent.

• Real estate in the name of the decedent and another person as tenants in common (unless it is homestead property).

Examples that are NOT probate accounts:

• A bank account or investment account owned by the decedent and payable on death or transferable on death to another or held jointly with rights of survivorship with another.

• A life insurance policy, annuity contract, or individual retirement account that is payable to a specific beneficiary.

• Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship.

• Property owned by husband and wife as tenants by the entirety (it goes automatically to the surviving spouse).

What Is A Personal Representative and What Do They Do?
The personal representative is the person, bank, or trust company appointed by the Judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix”. To qualify as a personal representative an individual must be a Florida resident or a close relative. The personal representative has a legal duty to administer the probate estate pursuant to Florida law and if the personal representative mismanages the probate estate they may be liable to the beneficiaries for any resulting harm they may suffer. The personal representative must:

• • Identify, gather, value, and safeguard the decedent’s probate assets.

  • Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.

  • Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.

  • Conduct a diligent search to locate creditors, and notify these creditors of the time by which their claims must be filed.

  • Object to improper claims, and defend suits brought on such claims

  • Pay valid claims.

  • File tax returns and pay any taxes due.

  • Employ professionals to assist in the administration of the probate estate (for example, attorneys, certified public accountants, appraisers and investment advisors).

  • Pay expenses of administering the probate estate.

  • Pay statutory amounts to the decedent’s surviving spouse or family.

  • Distribute probate assets to beneficiaries

  • Close the probate estate.

Florida Power of Attorney for Finances with a Durable Provision

A Florida Power of Attorney for Finances is a legal document where one party (the Principal) authorizes another party (the Agent or the Attorney-in-fact) to act on his or her behalf during an absence. This authority can specifically include or exclude several areas of interest, including matters of physical property, real estate, banking, insurance, tax matters, etc. Traditionally, this authority ends when you become medically incapacitated. However, you have the option to make the Power of Attorney (1) "Durable" which means it will remain effective from the time of signing the document and if you become medically incapacitated; (recommended) or (2) "Springing" which means it will only be effective upon you becoming medically incapacitated. You can elect which choice to make. A typical use of a Power of Attorney is to handle your affairs while you are out of the country or to designate someone to manage your affairs if you get sick.

Get the Answers You Need About Probate today! Call Carpenter Law PA at 407-343-7737.