In layman’s terms, probate is the legal mechanism used to distribute the property of a person who has passed to the heirs or beneficiaries and by which creditors of that person are paid (people to whom the decedent owed money)to the extent assets are available to pay these claims. There are many steps involved in the probate process, all of which usually begin with the filing of a petition in the circuit court in the county where the decedent resided at death.
The court then oversees the administration of the estate. Generally, the estate consists of all of the decedent’s individually owned property owned at death. This can include, automobiles, real estate, bank accounts, tangible personal property (jewelry for example) and other items. A person who dies without a will is referred to as dying intestate, while a person who died and executed a valid will is referred to as dying testate.
The main feature used in almost any attorney-drafted will is the naming of a personal representative-this is the person who will be in charge of the probate process. Other than a few exceptional circumstances, the personal representative must hire a Florida attorney to represent him in the probate proceeding. If a person died intestate, the personal representative will be appointed pursuant to an order of preference provided in the statutes of Florida. (the surviving spouse, if any, is given the top priority)
The personal representative must do a number of things in the probate process, including notifying potential creditors of the probate proceeding so that they can get paid, managing the decedent’s property, possibly liquidating property to raise assets to pay creditors and beneficiaries, and distributing property to the rightful beneficiaries. The length of time it takes for the entire process to be concluded is dependent on a number of factors, including the number of creditors involved, the amount and value of the property involved, whether estate tax returns are required (usually only in very high dollar estates) and whether other petitions need to be filed to determine beneficiaries and so on.
The cost and fees involved in probate can also vary and it is impossible to provide any exact figures that will be meaningful. Most attorneys will determine a fee based on the value of the estate and which will factor in whether related litigation is involved, if tax returns need to be filed on behalf of the decedent, whether there conflicting or adversarial positions of the beneficiaries, etc.
The above statements are a brief generalization. If you have any specific questions regarding the probate process, please contact our office and we will discuss the particulars of your situation with you.