Florida Probate

Probate is process (not a tax) that helps settle debts, resolve disputes and transition an estate to the beneficiaries. In Florida, probate comes in three forms: Formal Probate, Summary Administration and Deposition of Personal Property Without Administration. The latter two apply to estates with few probate assets and debts to creditors.

What is a probate asset?

Probate assets are typically owned solely by the deceased and have no clear beneficiary without the use of a will or living trust. Examples would be real estate, a vehicle, bank accounts without a listed beneficiary and personal property.

Non-probate assets typically have beneficiaries or some other form of ownership. Life insurance, retirement accounts and annuities listing specific beneficiaries avoid probate. Assets held with rights of survivorship avoid probate. Assets titled into the name of a living trust avoid probate as well.

Estates with $75,000 or more of probate assets are subject to a formal probate, which requires an attorney. Estates under $75,000 may potentially be handled using Summary Administration or Deposition of Personal Property Without Administration. Consult an attorney to determine which probate is best for you.

The probate process

Once a will is filed, formal probate requires a Notice to Creditors to be published in a local newspaper and all interested parties to the estate must receive a Notice of Administration. The estate is inventoried, creditors contacted and repaid, tax returns filed and additional expenses paid. Once the court acknowledges all proper steps have been completed, the estate may be distributed to the beneficiaries.

The duration of probate in Florida is typically four months to a year, depending on the estate's size, complexity and if estate taxes are a factor. Creditors must be given a minimum of three months to make claims against the estate. Once probate is closed by a judge, creditors are unable to make claims against the estate (in the shorter forms of probate creditors have a two-year period to make claims even if the estate has been distributed).

The costs of probate from the government are usually less than a thousand dollars. Attorney fees and personal representative fees (the people serving as executors) can hundreds or thousands of dollars. Statutes set by Florida limit the maximum amount charged by attorneys without consent from a judge or parties to an estate.

• $1,500 for estates with a probate value of $40,000 or less
  
• $2,250 for estates with a probate value of $70,000 or less
  
• $3,000 for estates with a probate value of $100,000 or less
  
• An additional 3% on the next $900,000
  
• An additional 2.5% on probate values above $1 million and not exceeding $3 million
  
• An additional 2% on probate values above $3 million and exceeding $5 million
  
• An additional 1.5% on probate values above $5 million and exceeding $10 million
  
• An additional 1% on probate values above $10 million
  

The State Bar of Florida offers a free description of probate in Florida from the probate guide.

Consult an attorney for legal advice on whether to steps to avoid probate, such as using a living trust or naming beneficiaries on assets, or plan for probate.