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FORMAL PROBATE ADMINISTRATION
In the state of Florida there are two types of probate administrations and which process applies to your estate depends on several factors. Formal probate administration serves many functions and it is a way for a probate court to authenticate a will and determine the property rights of heirs. It also allows for the appointment of a personal representative to pay creditors and distribute the remaining estate assets. Several issues may arise during formal probate administration that necessitates the help of a lawyer.
WHAT IS FORMAL PROBATE ADMINISTRATION?
Formal probate administration in Florida moves through three key phases and with the help of our probate administration attorneys at Nuñez Estate Law & Title, we can guide you through each step. Formal administrations must be done when the assets of the estate reach the $75,000 threshold. However, not all assets are included in the estate. For example, jointly owned real estate, a shared bank account, assets in a living trust controlled by the decedent, and life insurance with a named beneficiary are all not part of the total counted.
First, a party must submit a formal request to open probate to the correct branch of the Probate Court, this is called the petition. This petition must include the following, which an attorney assists in drafting:
- A copy of the decedent’s will;
- Information about the decedent’s property;
- A list of all known creditors;
- A list of all named heirs and family members.
The second phase is the authentication of a will. Under state law, a will is presumably valid if it is in writing, contains the author’s signature, and two witnesses also sign the document. Contrary to popular belief, a will does not need to be notarized in Florida to be valid. Any interested party may contest a will’s authenticity if they believe there was alleged fraud or duress. If a will does not exist, this is disclosed to the court, and the heirs (per Florida statute) would be the beneficiaries of the estate.
Finally, the court will appoint a personal representative to oversee the maintenance of estate property and distribute it to all appropriate parties. This step is unique to formal administration and does not occur during a summary administration case. This is usually the most labor-intensive phase of the process. Under the guidance of our probate attorneys at Nuñez Estate Law & Title, the Personal Representative gathers necessary information to inventory the assets, identifies and notifies any creditors, pays these creditors or challenges their claims, collects any debts owed to the deceased person, maintains the assets during the process, invests assets as needed, identifies and notifies all beneficiaries, converts certain assets to cash, oversees the tax filings, and more. This is why it is important to have our experienced team by your side guiding you through each step of the process.
After the distribution of assets is complete, the personal representative may ask the court to close out the formal probate administration and close the case. The judge then signs an Order of Discharge which releases the personal representative from his or her duty and brings the estate proceeding to a conclusion. At that time all the probated assets are distributed to the various heirs in accordance with the person’s will and/or Florida law.