If there is a Will, the person in possession of the original Will must file the will with the court. My probate clients are typically the named personal representative (sometimes referred to as executor) in the Will or the person that the law would give preference to serve as personal representative in an intestate estate (an estate where the decedent died without having a valid will). Usually the personal representative is a loved one of the dearly departed who they trusted in life so that may carry out their wishes after their passing
After meeting with the proposed personal representative and conducting some information gathering the attorney will draft the appropriate petition to be filed with the court. There are different types of probate proceedings. Determining which type of proceeding is appropriate is a matter of law and facts.
Notice of the probate proceedings is provided to the surviving spouse, beneficiaries, and other persons or entities with an interest in the estate. The notice provides the following:
- the name of the nominated or proposed personal representative
- the attorney representing the personal representative
- the county where the proceedings take place
- the court having jurisdiction
- notifies the surviving spouse of their rights with regards to the decedent’s property.
The parties receiving notice are advised that if they do not object to any of the above bullet-ed points by a certain time that any objections they have are forever barred.
If everything goes smoothly, the judge will issue an order appointing the personal representative. Sometimes the judge will require the personal representative to post bond prior to issuing what’s called “Letters of Administration” (Letters). The Letters issued by the judge give the personal representative the legal authority to act on behalf of the estate.
The “Notice To Creditors” will be then be published in a local newspaper for two consecutive weeks and formally served to known or ascertainable creditors of the estate. The Notice includes the following:
- the name of the decedent
- the court case number
- address of the court
- the name and address of the personal representative and the attorney for the personal representative.
Creditors have three months form the date of first publication of the Notice to Creditors in the newspaper or thirty days after the date of formal service of the Notice to Creditors to file a claim against the estate with the court or the claims are forever barred.
An Inventory of all the probate assets is filed with the Court. The Inventory filed with the Court has to include an estimate of what the fair market value of the probate assets were as of the date of the decedent’s death. Sometimes it may be necessary to hire an independent professional appraiser to assist. Florida law provides for the confidentiality of the Inventory and limits disclosure to those having a legal interest in the proceedings (i.e. creditors, beneficiaries) or upon a showing of good cause.
After expiration of the creditor’s claims period and if filing a federal estate tax return is not required, the personal representative may begin to distribute assets of the estate. How these assets are distributed depends on many factors such as:
- whether there is income tax owed from the decedent and/or the estate
- whether estate taxes are owed
- the presence or absence of valid creditor’s claims
- the terms of the will
- whether the surviving spouse is entitled to a share of the estate (elective share)
- whether there is homestead or “exempt” property
After creditor claims have been paid, unless waived, a Final Accounting will be due prior to closing the administration of the probate estate. The Final Accounting of the estate’s assets will be required unless the remaining “interested persons” (typically beneficiaries that have not received their share yet) in the proceedings waive their right to a Final Accounting. The Final Accounting is due prior to closing the estate and prepared after all claims against the estate are paid. It will include a list of the probate assets consistent with what was listed in the Inventory, including the starting balance of the estate, receipts, disbursements, distributions, capital transactions and adjustments of estate assets, and the assets on hand at the close of the accounting period.
The Final Accounting is prepared as a companion document to the Petition for Discharge which includes a plan of final distribution of the estate’s remaining assets. Both the Petition for Discharge and Final Accounting are served on the remaining “interested persons” in the proceedings. Any objections concerning the final distribution must be filed with the court within 30 days of service of the Petition for Discharge.
If no objections are filed, then the personal representative will distribute the remaining assets of the estate as stated in the plan of distribution and then file a notice of distribution with the court.