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 » The Probate Estate and Trust Administration Process

The Probate Estate and Trust Administration Process

Our firm represents personal representatives, beneficiaries, and other interested parties in all aspects of the probate process. When a loved one has passed, you need the services of an attorney who is competent in estate administration matters and who has compassion to help you in a time of crisis.

The probate process described below is a tedious, time-consuming, and detailed process. There are numerous burdensome tasks to be performed, and any error on a task will cost the estate time and money. While Florida law requires that you hire an attorney to probate an estate, many attorneys will not complete all the tasks for you. We take the burden off our clients by performing all tasks in the probate process for them, thereby ensuring that all tasks are performed timely and correctly.

What is Probate?
To most people the probate process is a mystery. If you ask someone what probate is, he or she will probably tell you probate is something to be done when you die, but he or she doesn’t really know what it is. You should keep in mind that each probate case is different, so the matters discussed here might not apply in a given case.

In very general terms, probate is the process used to collect the assets of a decedent, to pay the decedent’s debts, and to distribute the assets to the decedent’s heirs. In Florida, that process is governed by the circuit courts, and it typically takes six to twelve months, although in some cases that time frame is shortened slightly or lengthened greatly.

The Probate Process (Formal Administration)
Probate is begun by the filing of the decedent’s last will with the clerk of the circuit court in the county where the decedent resided at the time of his or her death. In some cases, the estate also is probated in other counties where the decedent owned real estate. In most cases the personal representative (the “PR”) nominated in the will files the will along with other documents needed for the probate court to appoint a PR. In cases where there is no will, the court will determine who should serve as PR and the identity of the heirs based on state law. If the initial documents filed are in proper form, the court will issue letters of administration, which is a court order the PR may use as proof that he or she is empowered to act on behalf of the estate.

Once qualified, the PR then gathers the assets of the estate. The PR is responsible for collecting and managing probate assets, which are those assets which pass to heirs under the terms of the decedent’s will or by the law of intestate succession if there is no will. After gathering the assets, the PR notifies creditors by mail and by publication of the deadline to file claims against the estate to pay the decedent’s debts. If claims are not timely filed, they are barred. Once a claim is filed, the PR has thirty days after the claim is filed or four months after the notice is published, whichever is later, to object to the claim. If no timely objection is filed, the PR must pay the claim using estate funds. If the PR objects to the claim, the creditor has thirty days to file suit to have the court decide the validity of the claim. If suit is not timely filed, the claim is barred.

The end of the probate process is a busy time for the PR. After all creditor claims are paid or otherwise resolved, the PR must distribute the remaining assets to the heirs. To do so, the PR might be required to close accounts to convert them to cash, sell other assets if the will so directs, or execute deeds to transfer title to real estate to the heirs. In addition, the PR must file a final accounting with the court, which shows the assets that came into the hands of the decedent, what debts and expenses were paid, and what bequests were distributed to the heirs. The PR also must file a petition with the court to close the estate and discharge the PR from further service. If the court finds everything to be in order, it will issue an order closing the estate. At that time, the process is finished.

Summary Administration
In some cases the formal administration process described above can be avoided. In cases where the assets of the estate which are not exempt from probate, such as homestead exempt property, are worth less than $75,000.00, the estate qualifies for summary administration.

Summary administration is a probate process that is greatly expedited, compared to the formal administration process. Typically, the summary administration process takes a few weeks, as opposed to several months for the formal administration process.

When possible, we use the summary administration process to save our clients time and money. Please ask us if summary administration is appropriate in your case.

Tax Preparation Services
Large estates are required to pay estate tax. In 2009, an estate worth over $3,000,000.00 must file an estate tax return. In addition, if the estate earns income while it is pending, it might have to file an income tax return. We have experience preparing and filing those returns, and are prepared to assist you with the returns as part of the probate process.

Estate Disputes
Unfortunately, in some cases disputes between those interested in an estate arise. We counsel our clients to attempt to resolve such disputes. However, in cases where such a resolution is not possible, we represent clients in court to protect and advance their interest in an estate, including trying the case before a jury and pursuing appeals, if necessary.

Trust Administration
We also represent trustees and beneficiaries in various trust administration matters as well as disputes regarding trust provisions.

If the decedent had a properly drafted and funded trust in effect before death, the administration process can be expedited greatly. Although the services of an attorney is not required to administer a trust, an attorney can actually save the beneficiaries time and money by ensuring that the trust terms are carried out as quickly and efficiently as possible.