Probate is the legal process whereby the court determines the validity of the decedent’s Will, what the decedent’s debts were at the time of death and how those debts are to be paid, and how the remaining probate assets of the decedent are to be distributed to the decedent’s heirs or beneficiaries. Florida law provides a scheme for the order in which payments of expenses and obligations of the estate are to be paid.
Here at The Law Office of Jeffrey A. Attia, PA, we help settle probate estates in Fort Myers and throughout the Southwest Florida region. An experienced Fort Myers probate lawyer at our firm can help you navigate complicated legal proceedings and make sure your loved one’s estate and debts are handled properly.
What are Probate Assets?
Not all of a decedent’s assets are necessarily considered probate assets. Probate assets are those assets which at the time of death were in the decedent’s name alone and which contain no provision for automatic succession of ownership at death.
Non-probate assets — whether due to automatic succession or having been titled in another’s name — generally avoid probate. Common non-probate assets may include:
- Joint tenancy property
- Tenants by the entirety property
- Annuity contract
- Retirement benefit accounts
- Life insurance benefit account payable to named beneficiaries (though there are exceptions)
- Bank funds with P.O.D. or T.O.D. beneficiaries
- Property held in living trust
- Household goods (i.e., furniture, appliances, etc.)
Depending on the circumstances, an abbreviated proceeding may be appropriate, known as summary administration. There are also distinct probate proceedings for decedents that owned property in the state of Florida (i.e. vacation home) but who were not Florida residents at the time of death, known as ancillary administration.
Probate Example #1 (Where There is a Will and Living Trust)
This is just a simple example for illustrative purposes. One of the main reasons people consult with an estate planning attorney and set up a Trust is so that when they die, their estate can avoid probate. In practice this does not always work. For example, assume that John Doe had a bank account worth a million dollars and a stock brokerage account worth a million dollars as well at the time of his death. Let’s also assume that John Doe never set up his individually owned bank and stock brokerage accounts so that there were payable or transfer on death designations. Further, the bank and stock brokerage accounts were not owned by the Trust, but in John’s name alone. So, in order for these assets to have been legally transferred, probate proceedings were necessary.
Had John Doe set up his accounts with a payable on death designation or transferred ownership of the accounts to his Trust, those assets would have passed to the beneficiaries by “operation of contract” and the assets would not be subject to probate as they would not be considered probate assets. Because the bank and stock brokerage accounts were probate assets, they were subject to probate proceedings and distributed to the beneficiaries in accordance with the terms of the Will.
Probate Example #2 (Where There isn’t a Will)
Probate may be necessary regardless if the decedent had a will or not. Assume this time that John Doe never made out a Will. Again, in this example John Doe did not provide for any payable on death designations in his bank or stock brokerage accounts. Let’s add a wrinkle. John Doe owned a house with his cousin and the deed on the house reflected that title between John and his cousin was held as “joint tenants with rights of survivorship”.
In this example, after John died, the house was not subject to probate proceedings. Because John and his cousin owned the vacation house as “joint tenants with rights of survivorship,” after John died, his cousin became the sole owner of the house as title passed to his cousin by “operation of law.” The bank and stock brokerage accounts would still be subject to probate proceedings and distributed to John’s beneficiaries in accordance with Florida’s intestacy statutes subject to valid creditor claims filed against the estate that remain unpaid.
Intestate Succession in Florida
Under normal circumstances, the Will is a critical document that guides the executor and identifies the beneficiaries who will receive the assets of the decedent’s probate estate. Despite its importance, many decedents fail to execute a valid Will, and thus their assets may not be distributed upon their death as they intended.
So, what happens if the decedent did not execute a valid Will?
In Florida, as in other jurisdictions throughout the country, the default, statutory laws of succession — known as intestate succession — apply and guide the ultimate distribution of assets.
Given that Florida intestate succession may conflict with the decedent’s true intentions for the distribution of assets, it is important to consult with an experienced Fort Myers probate lawyer for guidance. With the aid of an attorney, you may be able to prove that whatever documents had been executed by the deceased were, in fact, sufficient to constitute a valid will.
It’s worth noting that only the distribution of assets that would have otherwise been addressed by a will — in other words, probate assets — are affected by intestate succession. For example, if at the time of the decedent’s death, the decedent owned a house with the surviving spouse as tenants by the entirety, then the house would pass automatically to the surviving spouse by operation of law and would not be subject to the application of Florida intestate succession law.
Sections 732.101-111 of the Florida Statutes govern intestate succession. Intestate succession rules are rather strict, and distribution fundamentally depends on the decedent’s family’s structure and circumstances. If the decedent had some children from a prior marriage and was married at the time of death, for example, a different set of distribution rules will apply than if the decedent had a surviving spouse and the decedent’s children were also the children of the surviving spouse.
Let’s take a brief look at the structure of succession when there is a surviving spouse.
The surviving spouse receives the full share of the decedent’s estate assets if there is no surviving descendant of the decedent. In fact, the surviving spouse is entitled to the full share of the decedent’s estate assets even if there are surviving descendants of the decedent, so long as those descendants are all descendants of both the deceased spouse and the surviving spouse and the surviving spouse has no other descendants.
If there are other descendants such as children of the deceased who are not descendants of the surviving spouse, then the assets will be split — one-half to the surviving spouse, and the other half, to the decedent’s descendants, per stirpes (meaning, in equal shares).
The distribution is quite different if no surviving spouse exists.
With no surviving spouse, all estate assets (that do not function by virtue of automatic succession) are distributed to the descendants of the decedent, per stirpes.
If there are no descendants, however, then the assets will be distributed to the parents of the decedent equally.
If there are no descendants and no surviving parents, then the assets will be distributed to the decedent’s siblings. If the siblings or a sibling is deceased, then the deceased siblings’ share will be distributed to the siblings’ surviving descendants.
If all of the preceding heirs do not exist, are did not survive the decedent, then the assets will be distributed to the grandparents, equally, and (potentially) to their various descendants.
Intestate succession is an extensive — and sometimes challenging — process. Qualified probate attorneys in Fort Myers, Florida can assist you in either opposing the application of intestate succession rules or in navigating the rules for the benefit of the decedent’s heirs.
Formal Probate at a Glance
As the personal representative of an estate — in other jurisdictions, the personal representative is commonly referred to as the executor, and sometimes as the administrator — you may be required to initiate formal probate proceedings by filing a petition with the probate court (where the decedent resided in at the time of their death). Generally speaking, probate hearings are uncommon in uncontested probate proceedings.
Though probate hearings are rare, if you find that a hearing is necessary, then notice must be provided to relevant parties. Giving proper notice can be a challenge for first-time personal representatives — further, if an interested party has not received adequate notice of the probate hearing, that may lead to significant delays. As such, it’s important that you get in touch with an experienced Fort Myers probate attorney for assistance.
At some point after initially petitioning the court to be appointed Personal Representative in the formal probate proceedings, the probate court will issue Letters of Administration that authorize you — the appointed personal representative — to act on behalf of the estate.
At the close of the probate proceedings, the court will approve the final distribution schedule, including remaining outstanding payment requests and all accounts will be evaluated to ensure consistency. Before (and sometimes after) the distribution of assets is complete, an order of discharge will be issued in accordance with the proposed final distribution schedule, and you will no longer shoulder responsibilities as the personal representative of the estate.
How a Personal Representative Is Appointed
Appointment of the personal representative varies quite substantially depending on the existence of a valid Will.
There is a Valid Will
If a valid Will has been executed by the decedent, then typically a personal representative will have been named in the document itself (along with various “backups” in case the named representative does not survive the decedent). As a general rule, the court will follow the wishes expressed in the Will unless some specific legal prohibition does not allow it (i.e. the nominated personal representative has been convicted of a felony) — in fact, preference must be given to the personal representative named in the Will.
No Valid Will Exists
When no valid Will exists, eligible persons may petition the probate court to be appointed as the personal representative. Though certain persons are given priority to serve as a personal representative (pursuant to section 733.301 of the Florida Statutes), the court may deny the appointment if exceptional circumstances exist to justify such denial.
It’s important to note that there are many disqualifying factors that prevent a person from serving as personal representatives. In Florida, the person seeking appointment as personal representative must be over the age of majority (e.g., age 18), mentally and physically competent to serve as the personal representative and cannot be a convicted felon.
If the person seeking appointment is not a Florida resident, Florida courts will only allow the person seeking appointment to serve as a personal representative (in accordance with section 733.304 of the Florida Statutes) if you are:
- A legally adopted child or adoptive parent of the decedent;
- Related by lineal consanguinity to the decedent;
- A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
- the spouse of a person otherwise qualified above.
Appointment as the personal representative can be complicated, particularly when other relatives dispute your appointment. We encourage you to get in touch with a Fort Myers probate attorney for an evaluation of your qualifications as a personal representative and help with securing an appointment.
Personal Representatives Can Be Removed
Personal representatives wield substantial powers that they can exercise to fully close the decedent’s estate — and by virtue of these powers, there is ample possibility of abuse. All personal representatives are bound by a duty to act with good faith when handling the affairs of the estate and have a fiduciary duty to both creditors of the estate and the estate’s beneficiaries. As such, the personal representative must avoid mismanaging the funds of the estate and engaging in acts that might be reasonably deemed a conflict of interest.
Section 733.504 of the Florida Statutes defines the various “causes for removal” of the personal representative. They are as follows:
- Adjudication that the personal representative is incapacitated;
- Physical or mental incapacity of the personal representative;
- Failure to comply with a court order, unless the order has been superseded on appeal;
- Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required;
- Wasting and maladministration of the estate;
- Felony conviction;
- Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative;
- Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole (does not apply to the surviving spouse due to the surviving spouse’s exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in the Florida Probate Code);
- Revocation of the probate of the decedent’s Will that authorized or designated the appointment of the personal representative;
- Removal of domicile from Florida (if domicile was a requirement of the initial personal representative appointment); and
- The personal representative was qualified to act at the time of appointment but is not now entitled to appointment..
Importantly, however, a personal representative cannot always be removed because of a violation — generally speaking, there must be evidence that the estate assets may be at risk due to the violation.
Contact a Fort Myers Probate Lawyer Today
If you have questions about how to handle your loved one’s probate assets, The Law Office of Jeffrey A. Attia can help. Call us today 239.919.2318 to schedule a free consultation with an experienced probate attorney at our Fort Myers office, or contact us online now.