Probate

Probate Administration

A probate estate will be opened if a person dies either having a Will or without having a Will but has assets titled in his or her name. Contrary to the common belief that a Will avoids probate, the opposite is actually the truth. If you have nothing but a Will and there is an asset titled in your name upon your death, then there must be a probate. The probate process, as explained above, is initiated in order to change the title of an asset owned by a deceased person. In fact, if the only estate planning device used is a Will, then there absolutely, positively must be a probate estate. This may not occur upon the death of the first spouse. However, if you are a single person or the last spouse to die then there must be a probate estate opened.

If there is a probate estate, certain things need to be done in order to "probate an estate." The Florida probate rules (Florida Statute Section 731-735) govern what happens during the probate administration of an estate in Florida.

General Administration of an Estate
If it is determined that a probate estate must be opened, a lawyer must be hired. The first step in the administration process is to inventory the assets or affairs of the deceased. The probate process begins with the preparation and filing of a petition to open a probate estate and to request that Letters of Administration be issued.

First, the court must agree that the person filing for administration, pursuant to the Will or pursuant to statute without a Will, is the proper party and has elected a proper Personal Representative. (In some states this person is called the executor.) The probate court judge generally approves whomever the initial document appoints as the Personal Representative. Along with approving the Personal Representative to handle the affairs of the estate, the judge also issues Letters of Administration. These letters empower the Personal Representative to handle the affairs of the estate. Copies of these Letters of Administration will be sent to anyone who has custody of assets that belonged to the deceased but will now belong to the estate. Anyone holding such property will be required to immediately transfer the property to the care and custody of the Personal Representative.

After the Personal Representative has identified, located, and transferred the assets to his or her control, the settling of the estate can occur. The Personal Representative is required to search out and determine all debts and claims against the estate. Just because a person dies does not mean his debts die with him.

Once the appropriate claims have been identified and paid, the Personal Representative will then determine what taxes, if any, are due. In most cases, the date of death does not exactly coincide with the tax year. Therefore, anyone dying during a tax year will still be responsible for taxes on income earned during the year of death. Sometimes, two income tax returns need to be filed. If a person dies before filing his taxes on April 15, the taxes for the previous year and the taxes for the year of death will need to be paid.

If an estate exceeds $1.500,000, inheritance taxes will need to be paid in addition to income taxes. Following the settlement of all claims and the payment of all debts, expenses and taxes, the Personal Representative will then divide the assets and distribute them according to the terms of the Will. If there was no Will, the Personal Representative will distribute the assets in accordance with Florida Statutes governing intestate estates (without a Will).