Step-by-Step Guide to Florida Probate Administration

If you have never been through the probate process before, it is helpful to have an idea of how the process works and what you can expect as it moves along. But keep in mind that the actual process can vary significantly depending on the estate and the assets being probated and that the steps below are only meant to serve as a general overview of the probate process.

Specific questions or concerns about probate should be discussed with a Business Trial Group attorney.

Step 1: Personal Representative Meets With Florida Probate Administration Attorney The person nominated in the decedent’s will to serve in the role of personal representative for the estate has an initial conference with the probate lawyer. At this time, documents needed for probate administration —such as the decedent’s Last Will and Testament, real estate deeds, financial statements, life insurance policies, and evidence of debts owed—are gathered and prepared to file.

Step 2: File Documents With the Florida Probate Court Probate officially begins when the personal representative files documents with the probate court, including a petition for administration, acceptance as personal representative, and an order admitting the will to probate.

Step 3: Notify Beneficiaries When probate documents are filed, the personal representative must notify the decedent’s surviving spouse, beneficiaries, the trustee and beneficiaries of any estate trust, and other persons entitled to inherit property that probate is underway.

Step 4: Receive Administration Letters from Court and Open Estate Account The Florida probate court must issue letters of administration before probate can proceed further. Once the letters are issued, the representative can take the documents to a bank and open an estate account. The estate account serves as a depository for estate assets that are subject to probate.

Step 5: Issue Notice to Creditors Notice to estate creditors are filed, alerting them that a probate proceeding has been opened. During this stage, creditors may file claims with the probate court. The Florida estate administrator can pay the claims or dispute them.

Step 6: Place Proceeds in the Estate Account All assets and accounts that were solely in the decedent’s name may be liquidated and property sold. The proceeds are distributed to the estate account.

Step 7: Pay Final Estate Taxes As part of settling the decedent’s estate, the personal representative must prepare a final income tax return, and deal with other applicable taxes, such as an estate tax.

Step 8: Final Estate Accounting A final accounting of the estate is made and distributed to each beneficiary. The accounting details the estate assets, any distributions made, and probate costs, which may include a fee paid to the personal representative. As a fiduciary, the representative must act in the best interests of the beneficiaries. The representative’s failure to uphold their fiduciary duty could lead to a lawsuit.

Step 9: Distribute Assets A plan for asset distribution is prepared for the beneficiaries to agree upon. When all the beneficiaries agree to the plan, assets are distributed according to the decedent’s will.

Step 10: Discharge the Estate The Florida probate court officially discharges the personal representative and closes the estate proceeding. Probate is concluded.

Anyone affected by the probate process should take note of the following:

• Statute of Limitations for Florida Probate: There are strict filing deadlines for lawsuits against the estate or the personal representative. In general, the estate and the personal representative cannot be held liable for any claim that arises 2 years after the death of a Florida person. Creditor claims may be barred 3 months after the first publication of the notice to creditors.

• Florida Estates Without a Will: When a person dies with a will, this is known as an in testate estate. Conversely, when a decedent has no will, the estate is in intestate. Intestate estates can pose significant complications for beneficiaries and other interested parties. For Florida intestate estates, the appointment of a personal representative and asset distribution are made in accordance with probate law, with the decedent’s surviving spouse and closest heirs generally given preference.

• Florida Probate Costs: Attorney fees for probate are payable directly from the estate, so there are no out-of-pocket expenses. Reasonable attorney fees are specified in Florida’s probate code. Attorneys are not required to exactly follow these fees, but they provide a general idea of probate costs, which are proportional with the estate’s value. Probate litigation and other “extraordinary services” result in additional costs. The Business Trial Group handles will contests and other adversarial proceedings on a contingency-fee basis.

• Business Assets: When the decedent owned a Florida business, disputes can arise between heirs and business partners over who is the rightful beneficiary of the business, or aspects of the business such as shares, real property, and intellectual property. These disputes can occur even if the will specifies a succession plan, but if there is no will—or if the will hasn’t been updated to reflect recent changes—the situation can be particularly contentious. If there is a probate dispute over the assets or operation of a Florida business, it is important to hire an experienced probate litigation attorney.

• Court Appearances: The personal representative of a Florida estate does not need to personally appear in probate court, as all the necessary filings can be completed through correspondence with the local probate attorney. Appearance in court may be necessary, however, if there is a dispute that requires a hearing.

For all but the simplest estates, Florida law requires that the personal representative of an estate hire a probate attorney to guide him or her through the process.

While hiring an attorney might seem like an unnecessary burden, an attorney should help make the probate process as efficient as possible. Wrapping up probate administration in a timely fashion is in the best interest of the estate and all interested parties.

Whether you are a personal representative, a creditor, a beneficiary, or an heir affected by a probate proceeding, the Business Trial Group can help. Learn how during a no-cost, no-obligation case review.