St. Petersburg Probate Attorney
What Is Probate?
The word probate means to prove. In Florida, the probate court is where certain matters pertaining to a deceased person’s estate (and their assets) are transferred through a judicial proceeding. Basically, probate is the court’s way of making sure a person’s wishes are honored as they would have wanted them to be.
We are here to help you when a loved one has passed and their assets need to be transferred to the beneficiaries. In Florida, that process can be very confusing. We can walk you through those unknown paths.
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How Does Probate Work?
The basic goal of probate is to pass clear title to assets on to the rightful beneficiaries. Assets that are subject to the process are known as probate assets.
These assets are subject to a Last Will and Testament or without a will. Dying with a will is called Testate. Dying without a will is called Intestate.
Typically, in a testate estate (with a will) the will names a personal representative to:
- Identify and collect the assets
- Pay the decedent’s debts and expenses
- And distribute the remaining assets to the named beneficiaries
Through the will, trusts can be created for minors and other beneficiaries who need protection.
What If There Is No Will?
If the person died Intestate (no will), the State of Florida determines who will be the beneficiaries or heirs. Heirs are the spouse (if one) and children. If there are no children or grandchildren, then it would be other close relatives.
Passage of assets in accordance with these laws may or may not be the way a deceased wanted the assets to pass. In any event, the intestate estate will have to be administered through the court probate process.
When Is Probate Required in Florida?
Probate is only needed when a person passes away with assets in their name only.
Here are a few times when you may need to do a probate administration for your deceased loved one:
- There is a bank or investment account titled in the deceased person’s name alone,
- They had a home with no one else’s name on the title,
- They owned a business and there is no one to take over,
- They had life insurance with no beneficiaries named, or
- Someone holding assets told you that you need “court papers.”
Here Are Some Examples of Assets That Usually Pass Without Needing a Probate:
- IRA’s that designate beneficiaries,
- Life insurance policies that name beneficiaries,
- Assets in a trust, and
- Accounts set up with a joint tenancy with the right of survivorship provision.
Do All Estates Go Through Probate in Florida?
Not all estates have to go through the probate process in the state of Florida. It is required only if a person passes away without a will or trust and has assets in their name. Probate is used to distribute their property and assets.
Their property does not have to go through the probate process if the following have their beneficiaries' names or joint owners:
- The property
- Bank accounts
- 401K plans
- All assets
That does not mean that beneficiary designations are a good idea all the time. One should discuss this option with their estate planning attorney to understand whether it is a good plan for them.
If you are going through the probate process, as personal representative, you are legally required to have an attorney present with you during the probate hearing in court. The experienced St. Petersburg probate attorneys at Hill & Kinsella are here to help guide you through the process. Call now for a consultation!
The Florida Probate Process
Probate is defined as the court-supervised process of distributing the assets of a deceased individual. It also includes paying off their debts.
The assets that are included in the probate process may include:
- Their Financial Accounts
- Life Insurance Policy
- Real Estate Solely in Their Name
The personal representative is required to have attorney representation and should employ an attorney that will walk them through this, sometimes confusing, process.
The formal probate process in the state of Florida includes the following steps:
Locate the Original Will
The original will needs to be submitted to the clerk court within 10 days after the person has become deceased.
Give Required Notice to Beneficiaries and Creditors
Florida law requires that a Notice of Administration be given to the beneficiaries written in the will and the surviving spouse.
Known creditors must be given Notice to Creditors and allowing them time to file a creditor claim to the estate. The Notice must also be published in the local newspaper along with the deadline for unknown creditors.
The personal representative takes custody of the assets and estate and provides an inventory to the beneficiaries and court.
Creditors have a right to file a claim on the estate which the personal representative will review with the attorney. If the personal representative objects to the claimcreditors may file a lawsuit against the estate.
The advice of the attorney is very important when it comes to creditors if the probate is not complex, the process could take under one year and sometimes even quicker.
After handling all estate activities the personal representative distributes the assets to the beneficiaries.
The representative can issue a plan for distribution and final accounting for the estate. Either beneficiaries must sign a release or the court approve before the representative can make a full distribution.
The personal representative will file a file accounting, plan of distribution, and petition of discharge to the probate court.
The judge will review the discharge petition and accept/reject the petition depending if all the steps were followed according to the law. Again, the counsel of a knowledgeable attorney is extremely helpful for this process.
How Long Does Probate Take in Florida?
The probate process is different in every state. There are a variety of factors that determine the kind of process you are dealing with and how long you should expect to complete the probate process.
The complexity and time span for the probate process also depend on the circumstances of the estate. Most estates in Florida can be settled within one year.
An estate may qualify as simple or Summary Administration and could take 3 months or less if it meets one or more of these factors:
- The estate is valued at less than $75,000 an no unpaid creditors, or the owner has been deceased for two years or more
An estate qualifies as a complex or as a litigated estate and should take at least 2 years if it meets one or more of these factors:
- The beneficiaries have not been identified,
- The authentic will is lost,
- Disagreement over who should be the personal representative,
- Negotiation with creditors that have a claim on the estate,
- The estate itself is in a lawsuit,
- Income tax issues, including if the estate is taxable, the time required for filing the tax return and figuring out any issues can take years
- Negotiation over the authenticity of the will
Are you unsure what type of probate you will be/are dealing with? We understand that the process can be perplexing and frustrating. Hill & Kinsella is here to guide you through the process.
During our initial consultation, our team of experienced estate planning and probate attorneys are more than happy to go through your case with you and make sure you have a clear understanding of your options.
What Does a Probate Cost?
The cost of a probate is usually made up of:
- Court costs
- Bond fees
- Attorney fees
- Personal representative fees
That is why we only do probate actions when assets (like those above) exist.
Our Probate Fees
Our Probate fees generally start at $3,000-5,000 or may be set at a percentage of the estate according to Florida statutes that state a reasonable fee is 3% of the estate worth less than $1 million and is reduced after that.
We understand each probate is different based on circumstances and we work to set a reasonable fee after learning about the estate in our consultation with you.
Step-by-Step Guidance through the Florida Probate Process
Just as everyone has a different situation, each probate administration is different. We are here to help you tackle tough questions head-on, explore your legal options, and find the best path forward. Speak with our attorneys today to discuss your case and possible solutions.
We proudly help clients in St. Petersburg, Tampa Bay, and the surrounding areas with the probate process and to plan their own estate to avoid probate.
If you need a probate attorney in St. Petersburg or the surrounding areas, Hill & Kinsella can provide the professional legal expertise you need and deserve. Call (727) 240-2350 or contact us online today.
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When You Hire Us, You Get The Whole Team
You Can Expect Fast Response Times