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Probate Costs in Florida
Probate is the process of managing and distributing a deceased individual’s assets. In Florida, probate is generally necessary with most estates valued at $75,000 and over. The probate process can work out costly, lengthy, and somewhat frustrating for the heirs.
We understand that when a loved one passes away, the last thing the heirs want is to deal with complicated formalities and stacks of legal paperwork. Moreover, inheritance issues can result in animosity, conflicts, and even litigation among family members, particularly when individuals discover that they are left out of the will or are due to receive less than expected.
However, help is available. If a relative passed away recently and you wonder about the cost of probate in Florida and how the process works, Morgan & Morgan can be here for you. Our seasoned probate lawyers can protect your rights as a beneficiary and initiate or fight litigation. Contact us now for a free consultation.
The Probate Process in Florida
Probate is the necessary part of settling most estates in Florida when an individual passes away. The steps in the probate process generally include:
Filing the Petition in Probate Court
In Florida, probate starts in earnest with filing the will and petition for appointing an executor of the estate in probate court. The estate’s executor or representative will be responsible for locating, managing, and distributing the assets. They will also pay off any creditors of the estate. Once the documents are filed and an executor appointed, the decedent’s beneficiaries, trustees, and all those due to inherit will be informed that the probate process has started.
The estate’s executor is responsible for informing creditors of the deceased’s estate. This usually takes the form of a “notice to creditors,” which is published in a local newspaper. Creditors then have three months from the date of the published notice to file any claims. The executor should also file a list of creditors with the probate court.
Inventorying the Estate
Another important task of the executor during the probate process is making an inventory and taking control of the estate’s assets. Assets can include but are not limited to:
- Real estate
- Investments such as stocks and bonds
- Bank accounts
- Life insurance policies
- Personal property and valuables
The executor must pay all valid debts of the deceased once the three months’ notice to creditors has passed. In the first instance, the executor will use the cash available in the estate account to pay open debts. However, if the cash is not sufficient, the executor must begin to sell off assets in order to pay the creditors. Valid debts can include:
- Mortgages on property
- Medical bills
- Outstanding utility bills
- Credit cards
- Funeral costs
Filing the Final Tax Return
The executor is responsible for filing a final tax return for the estate and arranging for any taxes to be duly paid as part of settling the estate.
Distribution of Assets and Final Accounting
The last step for the executor in the probate process is distributing the estate’s assets to the beneficiaries and providing the final accounting of the estate. All beneficiaries will receive the last accounting records, which should include:
- Details of the estate’s assets
- Distributions made to the beneficiaries
- Debts paid to creditors
- The costs of probate
Finally, the Florida probate court will conclude probate by discharging the executor and officially closing the estate proceeding.
Understanding Florida Probate Costs
In a typical probate proceeding, the cost of probate in Florida will consist of:
- Attorney’s fees
- Court filing fees (around $300 to $400)
- Postage for certified documents
- Charges for publishing the legal notice to creditors
- Accountant fees
- Probate costs for assets held in other states or overseas
High costs could also emerge in a contentious case, for example, if a beneficiary challenges the will. Probate costs can mount up, especially with large estates. However, having an experienced probate attorney by your side from early on in the process can help with minimizing costs.
What Are Reasonable Attorney’s Fees?
Florida law requires that probate attorney’s fees are reasonable since the amount received by the attorney will reduce the inheritance for beneficiaries. A court has the authority to reduce attorney’s fees if it deems them unreasonably high. According to the Florida probate code, reasonable fees are as follows:
- $1,500 for an estate valued at $40,000.00 or less
- $2,250 for an estate valued at $40,000.01 to $70,000.00
- $3,000 for an estate valued at $70,000.01 to $100,000.00
- $3,000 plus 3% for an estate valued at $100,000.01 to $1,000,000.00
For estates above $1 million, attorneys will receive further percentages calculated on the value of the estate. According to Florida law, attorneys can also obtain additional compensation for any “extraordinary” services, such as:
- Involvement in a will construction and contest
- Determining beneficiaries
- Handling adversarial litigation against the estate
- Preparing tax returns
How Morgan & Morgan’s Probate Attorneys Can Help
Having a dedicated probate attorney in your corner can be essential in the Florida probate process, whether you are a beneficiary, a creditor, or an executor. Our probate attorneys can help with:
- Filing the necessary paperwork in probate court
- Handle income tax returns and other estate tax matters
- Locate and value the estate’s assets
- Ensure asset distribution to the beneficiaries is carried out correctly
- Deal with disputes and file estate litigation
Can I Avoid Probate?
Probate can be a lengthy and expensive process, and beneficiaries often wonder whether there is a way around it. However, it is generally not possible to avoid the process of probate in Florida. Even when a will is present, probate is still required to ensure the assets are distributed according to the law and the decedent’s last wishes.
However, with smaller estates under $75,000, probate takes the form of a “Summary Administration”. Summary Administration is a simplified process typically used with small estates or when an individual has been deceased for more than two years. Summary administration is generally less formal, less expensive, and much quicker than a full, court-ordered probate process.
Do I Have to Hire an Attorney for Probate in Florida?
In almost all cases, except for small estates, probate requires an attorney. According to Florida probate rules, unless they are the sole beneficiary, the estate’s executor should be represented by an attorney admitted to practice law in the state.
Moreover, Florida’s probate system can be convoluted and complicated to navigate.
Lacking legal counsel and not knowing the appropriate probate procedures can result in missing deadlines and incorrectly filing probate documents. The larger and more complex the estate, the more important it will be to have an experienced probate attorney by your side. Working with an attorney is highly advisable when:
- There are doubts about the validity of the will, or there is no valid will
- There are legal disputes
- The estate involves a business or several businesses
- There are challenges to the will
- The estate includes out-of-state or foreign assets
Who Is in Control of the Deceased’s Assets?
During probate, the probate court and executor of the estate control the deceased’s assets. The court appoints an executor to manage the estate and handle the distribution of assets to the beneficiaries. The executor must adhere to Florida probate law and answer to the court.
Which Types of Estate Litigation Do Probate Attorneys Handle?
Our experienced probate attorneys can handle a variety of probate-related litigation, including:
You could potentially challenge a will if:
- There was undue influence of the testator (the person making the will)
- The will was wrongly executed
- A beneficiary was improperly removed from the will
- The testator did not have the mental capacity to make a will
- The will is forged or fraudulently signed
Trusts are popular vehicles for avoiding assets getting stuck in a lengthy probate proceeding. By creating a living trust in their lifetime, an individual can ensure that beneficiaries receive assets in a relatively uncomplicated way and without having to go through probate when they pass away. However, beneficiaries left out of the trust, or those who believe they are not receiving their fair share, may choose to initiate a lawsuit to amend or even dissolve a trust. Trust litigation can be filed for several reasons, most commonly:
Breach of Fiduciary Duty
A breach of fiduciary duty can occur when a trustee is involved in self-dealing or charges excessive administration costs.
Contesting a Trust
Beneficiaries may contest a trust, alleging that it was improperly set up or violates state law. In some cases, heirs can allege that the person creating the trust was the subject of coercion or undue influence or simply lacked the mental capacity to establish a trust.
Other Legal Challenges
A probate attorney can also help with various other legal challenges, including:
- Abuse of power of attorney
- Estate planning malpractice
- Breach of fiduciary duty by the executor
- Elder abuse
Our attorneys can also help with other inheritance disputes. If you believe that there was wrongdoing involved in your probate proceedings or you are subject to probate litigation, contact our probate attorneys for help and advice.
How Long Does Probate Take?
In Florida, probate typically takes around six months or longer. Summary administration can be completed in a few short weeks. However, when an estate is large or complex and involves foreign real estate, several businesses, or tax complications, probate can take much longer. In some cases, probate can take several years. The speed of probate can also depend on other issues, such as the local county court and your attorney. Finally, the length of probate is also determined by all beneficiaries agreeing. If there are any legal disputes or will challenges, it could take years before you receive your inheritance.
What if There Is No Will?
Dying without a will, also called “intestate,” means that the assets of the decedent will be distributed according to Florida state law. Despite a common misconception, dying intestate does not mean that the state will receive the decedent’s assets. Probate without a will is not much different to probate with a will, except that state law will determine who inherits. The beneficiaries will usually include the closest relatives such as spouses and children and, in some cases, parents and siblings.
However, if family circumstances are complicated or the estate is large, consider contacting an attorney if there is no will. If the individual who passed away had children from previous marriages and ex-spouses, for example, probate without a will can get complicated. Having a knowledgeable and experienced probate attorney by your side can ensure that you receive your rightful inheritance.
What Are Common Probate Complications?
In theory, an estate should be distributed according to the deceased person’s last wishes and will. However, in reality, arguments and conflicts between heirs or creditors can be common. A beneficiary may feel left out of the will and allege that the deceased was unduly influenced or coerced to change the will. Other common complications of probate can include:
- There are several wills or no will at all
- Creditors are making unsubstantiated claims on the estate
- Disgruntled individuals are challenging the will
- Beneficiaries named in the will have moved away and cannot be located
- There are allegations that the executor is breaching their fiduciary duty
- There are disputes over the estate’s value
These are just some of the complications that can arise during probate proceedings. Consulting with an attorney early on in the probate process could help to avoid undesirable consequences such as the value of assets being reduced and families fighting.
Contact Us for Help Today
We understand that close relatives and beneficiaries usually have a lot on their plate when a loved one passes. Fortunately, you do not have to handle the probate process on your own. The experienced probate attorneys at Morgan & Morgan can advise you comprehensively, inform you of the costs of probate in Florida, and protect your inheritance rights.
Our attorneys can make the probate process as efficient and smooth as possible. Moreover, if you have grounds to file estate litigation, we could help you receive what you deserve. There are no out-of-pocket costs as we only get paid when we resolve the dispute in your favor. Contact us now to find out more.