By: Lauren Morales, Esq., Attorney at The Elias Law Firm, PLLC, Miami Lakes
Losing a loved one can be one of the hardest things we can go through in our lives. Not only does the grieving process weigh on us, but the aftermath of dealing with the things left behind. One of the main ways we deal with this is through the probate process. The purpose of this article is to provide an overview of the probate process and explain the many intricacies involved when administering an estate.
What is Probate?
In simple terms, probate is a court-based process that allows for the transfer of assets owned by a decedent to a living person. The decedent refers to the individual who has passed away. One of the main questions the court always asks is whether the decedent died testate or intestate, which really means whether the decedent died with or without a will.
If the decedent died with a will, then the court requires the will be submitted with the decedent’s death certificate for review. When the decedent does not have a will, then the court turns to the Florida Statutes for what can be referred to as intestate succession. Its pertinent to note that regardless if the decedent had a will, the estate would still undergo the probate process. The main difference between the two routes is that one is created by the decedent during their life time and the other is determined by the Florida Statutes.
What Happens the Decedent Has a Will?
If the decedent had a will when they passed away, then his personal representative, who is an individual appointed in the will, would reach out to a probate attorney to begin the process. The court will check the validity of a will by ensuring it abides with the Florida Statutes. For example, Florida requires a will to be notarized, witnessed, and created when the decedent was sound of mind.
What Happens When the Decedent Did Not Leave a Will?
Although it’s great to be prepared and execute a will during one’s lifetime, there are many individuals who do not prepare one. It’s not entirely fatal to one’s estate, but it may cause delay and the result may not be the outcome the decedent would have desired.
Types of Probate
There are two main types of probate that can be done depending on the value of assets owned by the decedent. The most common type of probate is known as formal administration.
A formal administration is required when the decedent’s assets are more than $75,000.00 or the decedent has been deceased for less than two years. If the estate administration requires a personal representative, then a formal administration is also required. A personal representative is either appointed by the decedent via a will or appointed by the court. The main role personal representatives play is ensuring that the estate is distributed fairly to the decedent’s beneficiaries, heirs, and creditors are properly paid.
The second most common type of probate is a summary administration. A summary administration would be appropriate when the decedent’s assets are less than $75,000.00 in value OR the decedent has been deceased for more than two years. There are two critical things to keep in mind with a summary administration: (1) homestead property does not count towards the value of your estate and (2) if the decedent passed away more than two years ago, then there is no limit on the value of the estate for summary administration purposes. Nonetheless, a summary administration can often be cheaper and less time consuming than a formal administration.
What if the decedent had debts?
It is very common for a decedent to leave behind debts. Some common examples could be a mortgage, utilities, credit card debt, student loans, car loans, etc. The personal representative would be the one responsible for ensuring these creditors get paid. One of the main tasks a personal representative has is to serve a notice to creditors, which provides 90-day period for creditors to come forward and file a claim in order receive repayment. This type of notice is filed in a public media outlet, such as the Business Journal or Miami Herald. If the personal representative has knowledge of the decedent’s creditors, then the personal representative is obligated to send the creditor a copy of the notice of creditor posting and the creditor has 30 days to file a claim. This time period is essential for creditors to acknowledge because if they file too late, then their right of repayment will be deemed as waived.
Regardless of the timeliness of the creditor(s), there is still property which may be considered as “exempt” from creditors. The Florida Statute states that if a decedent has a spouse or children, then the homestead property, two cars, household furnishing and personal property up to $1,000.00 in value are exempt from creditors and will pass to the spouse or children.
How Does Homestead Play a Role in Probate?
One of the many perks of residing in Florida is homestead exemption. Similar to homestead protections during one’s life, these protections also extend through after their death. It’s important to keep in mind that Florida defines homestead as real property of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it. In order to qualify for homestead, the real property must be the decedent’s permanent residence before their death and it must be held in their individual capacity.
Another task the personal representative must do is file a petition to determine homestead. The three main reasons for filing this petition are: (1) to protect the property from creditors; (2) to protect the spouse and/or minor children of the decedent; and (3) to clear title. Protecting the property from creditors is definitely of top importance because without the petition, then the personal representative may be forced to sale the property in order to satisfy creditor claims. Secondly, it’s important to consider whether the decedent had a spouse and/or minor children because a Florida homestead property is not devisable either a spouse and/or minor child outlives the deceased. Clearing title is also important when the surviving spouse and/or minor child wants to sell the property. Typically, a title underwriter would want proof that the heirs are able to sell the property with this determination of homestead. Additionally, it provides a clear chain of title showing the validity of the title holders.
As you can see, we have highlighted some important factors when it comes to administering one’s estate. However, we have barely skimmed the surface. Probating a loved one’s estate can be extremely challenging and even daunting. If you need help with the process, please contact our office for a consultation today.