West Palm Beach Probate Attorney
The loss of a loved one is never easy. As the days move on following your loved one’s death, there will be a lot of legal issues to handle. One of those is probate. The West Palm Beach probate attorneys at Brian K. McMahon, P.A. understand the probate laws of Florida and can guide you through the process. Our compassionate, empathetic attorneys understand how difficult of a time it is right now and will work to ensure your rights are protected.
The Types of Probate in Florida
Florida law recognizes three forms of probate that an estate can enter into, and not all estates are required to go through probate. An estate of a decedent is required to go through the probate process if there was no will present and all of the assets were only in the name of the decedent. The three forms of probate are formal administration, summary administration, and disposition without administration.
Formal administration is the most common type of probate. Formal administration takes place in the Circuit Court of the county where the decedent lived at the time of their death, not where they died. The process begins when the executor of the decedent’s will, or anyone else, requests to be appointed as the personal representative of the estate. The beneficiaries named in the estate documents will receive notice of probate and have the ability to formally object.
Summary administration is used when the value of the estate is $75,000 or less. Summary administration is also used when the estate in question is for someone who died more than two years prior to filing. This often happens when someone who was missing has finally been found deceased. This form of probate begins with the filing of the Petition for Summary Administration. The petition must be signed by a surviving spouse or beneficiaries.
Disposition Without Administration
Disposition without administration only takes place when a set of circumstances are met or if the value of the assets left by the decedent is valued to be worth less than the final expenses present following probate. In order to initiate this type of probate, you must file the form Disposition of Personal Property Without Administration with the court.
What is the Personal Representative?
If you have been named as an executor of a loved one’s estate or appointed by the court as the estate’s personal representative, you have a host of duties to complete when probate begins. You will be required to perform the following duties as a personal representative:
- File notice of administration to the surviving spouse, children, beneficiaries, and anyone else with an interest in the estate
- Take inventory of all the estate’s assets and assign them value
- Send a copy of the inventory to all interested parties
- Send copies of all appraisals
- Include explanations as to how values were determined
- Open and inventory any safety deposit boxes owned by the decedent
- Take control of the decedent’s property under Florida Statute section 733.607
- Publish a notice to potential creditors, both known and unknown
- Manage litigation on behalf of the estate
- File tax returns for the decedent and the estate
- Distribute the assets of the estate
- Close the estate
Assets That Avoid Probate in Florida
Every type of asset except the following will be required to go through probate in Florida if a petition is filed:
- Property shared through joint tenancy
- Assets held in a living trust
- Retirement accounts under some circumstances
- Life insurance policies under some circumstances
Probate Court Disputes
It is also common for disputes to arise in probate court for various reasons. Some of the most common probate court disputes include the following:
- Claiming the will is invalid because it was not properly executed or another factor
- Claiming a trust is invalid due to mental incapacity or another factor
Paying Creditors During Probate
A West Palm Beach probate attorney will be able to help you understand how creditors are paid during the probate process. Never pay a creditor of a deceased loved one without first speaking to a probate attorney. It is also important to avoid using your own money to pay the creditors of a deceased loved one.
Debt Payment in Summary Administration
When going through summary administration, the decedent’s debts can be paid using money from eligible, non-exempt assets.
Paying Debt in Formal Administration
When paying debts through formal administration, the creditors will receive notice of probate and file claims against the estate by a deadline. The notice is published in newspapers that have distribution jurisdictions in the county where the decedent lived at the time of their death. Creditors have just 90 days to file a claim. If creditors are known, they are sent copies of the newspaper notice and have just 30 days to file a claim. All claims are waived if not filed within the respective timeframe. The estate’s personal representative can object to any and all debts that they believe are invalid.
Frequently Asked Questions
How much will probate cost in Florida?
The overall cost of going through probate in Florida varies based on the amount of assets and their value, including the overall value of the estate.
How long will it take to resolve my probate case in Florida?
If you are going through summary administration, and it is uncontested, probate can last roughly eight weeks. If going through formal administration, it takes anywhere from four to six weeks just to have the personal representative appointed. The estate can remain open for up to one year, but can last for years if there is a wrongful death lawsuit pending surrounding the death of the decedent.
Call a West Palm Beach Probate Attorney Today
When you have lost a loved one, you want all the support possible. A West Palm Beach probate attorney from Brian K. McMahon, P.A., can help you navigate the probate process in Florida. Call our office today to schedule an appointment with a probate attorney in West Palm Beach. We proudly serve clients in West Palm Beach, Port St. Lucie, Boca Raton, and South Florida.