When someone close to you has died and identified you as their personal representative or executor, you have a huge responsibility. If they owned an asset that was in their individual name, with no named beneficiary and no joint owner, then that asset must go through probate.
One of the most common misconceptions of estate planning is that the presence of a will determines the need for probate. In fact, probate is determined by how the assets are owned. A will can identify an appointed personal representative and give the roadmap for asset distribution. If there’s no will, then Florida statute dictates how and who should be appointed personal representative, and the asset distribution pattern.
We have Lake Mary probate administration lawyers available to guide you through this challenge. If you’re looking for some of the best probate attorneys around, you have come to the right place!
Let’s talk about the probate administration process from beginning to end. To begin the process, a probate estate is commenced by filing documents with the local county probate court. That can be done formally through a petition or informally through an application.
The document asks the court to appoint a person as personal representative, and potentially identify heirs. You may also ask the court to determine whether a will should be admitted to probate.
This is the document that gives you the legal authority to administer the probate assets, including selling real estate, gaining access to a bank account, and a brokerage account. It can include anything relating to the decedent’s financial affairs, both assets and liabilities.
Your authority as a personal representative may have restrictions. In addition, the letter of authority contains certain powers as well, but a broader understanding of Florida statutes, as well as the court rules, can guide you in your administration.
Administering probate without a Lake Mary lawyer is really risky, and there are all sorts of pitfalls that you may fall into. We strongly urge you to hire a competent probate administration counsel to guide you.
For known creditors who the deceased owed money to, you must give direct notice of the probate opening. For any unknown creditors, you should publish the notice of death, which provides notice for anyone else who may be owed money. These unknown creditors may be a credit card company, a hospital that sent a medical bill, or even the neighbor down the street. It is a statutory requirement to publish the death notice so that unknown creditors can be made aware of it.
If a creditor comes forward after the notice period is up, they are then statutorily barred from seeking compensation.
In addition to notifying creditors, you must give notice to any heirs at law; or to the devisees if there’s a will. Any of the interested parties are entitled to notice about the attorney fees that may be charged, and notice of the duties of the personal representative.
Next, as part of the role, the personal representative identifies and gathers the assets that the decedent owned, including real estate, bank accounts, brokerage accounts, et cetera. These assets will have no joint owner and no named beneficiary. What you do with those assets depends on the circumstances of that particular probate administration, which our Lake Mary lawyers can further explain. Administration of assets may include liquidating accounts, selling real estate, handling a business, and winding up other affairs of the decedent. In Florida, while probate records are public, inventories are kept private in most cases.
As we reach the conclusion of the creditor period, you will then need to resolve any debt relating to the estate.
Florida has a clear and precise statute that identifies a prioritization of the probate assets before they are distributed. Administrative expenses, attorney fees, and related costs are paid off the top, followed by funeral and burial or intermittent expenses. Next come federal payments, public assistance program debts, and any outstanding court fees, followed by medical expenses from the final 60 days of the decedent’s life. The last priority are child support and family allowance payments.
Before you take that final step of distributing assets, you should make sure that you’ve fulfilled all of your legal responsibilities identified under the letters of authority and other rules. Once you distribute assets, it’s nearly impossible to get the toothpaste back in the tube if you need to reverse course.
For example, if you forgot to pay the IRS a debt, it’s awfully hard to get that money back from family members to pay it off. That final phase of distributing assets should be done carefully to make sure you’re doing it according to Florida law.
Finally, you will close the estate, which means finalization and closing the file at the probate court. It can be done a variety of ways, depending on whether the probate is formal or informal.
There’s a lot to think about and act upon when someone dies with assets to distribute. You will need the aid of a Lake Mary probate administration lawyer to keep up with all the forms, notify creditors, and administer assets correctly. One mistake could be difficult to untangle and might even cause legal trouble.
If you’ve got further questions about probate, give us a call. We’re happy to answer any questions that you may have, and we look forward to having that conversation with you.