What Is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration.

WHAT ARE PROBATE ASSETS?

Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For Example:

  • A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.

  • A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.

  • Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.

  • Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive, but is intended to be illustrative.

Why Is Probate Necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

What Is A Personal Representative, And What Does The Representative Do?

The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term ‘personal representative’ is used instead of such terms as ‘executor, executrix, administrator and administratrix.’

The personal representative has a legal duty to administer the probate estate pursuant to Florida law.

Who Can Be A Personal Representative?

The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.

To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, or mentally or physically unable to perform the duties, or have been convicted of a felony.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.

How Long Does Probate Take?

It depends on the facts of each situation; some probate administrations take longer than others. For example, the personal representative may need to sell real estate before settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?

Florida law provides for several alternate abbreviated probate procedures other than the formal administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property, which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Courtesy of the Florida Bar ( https://www.floridabar.org/public/consumer/pamphlet026/)

Our Role

The process of selling a home through probate must be carefully managed and monitored. It is imperative that your real estate agent has experience in probate to help guide the buyer’s agent and buyer through the process and timeline.  Our team works closely with Probate Attorneys; we are well versed in the language of probate and can help adhere to court defined timelines to meet contractual obligations. We fully understand the court requirements and will ensure that all parties work in tandem to execute the necessary documents to effectuate an offer and subsequent sale of the property.   .

The All About Florida Homes Team is led by Amy Snook and Noreen Payne – In addition to  being top Realtors in Palm Beach County, Amy is also a licensed Title Agent.  The combination of knowing how to market and sell  the home, coupled with Amy’s title knowledge to get the sale closed is a winning combination for our probate clients.

  • List and sell the property on the open market:

    We are highly experienced agents who can create a strategy to get the property sold in the shortest time for the highest price. On average, we sell our homes faster and for more than the average REALTOR.

      • We perform a market analysis and work with the Personal Representative/Heirs to determine the appropriate list price along with sales strategy:
        1. Do you need to dispose of the property quickly?
        2. Do you need to maximize the selling price to provide the greatest cash benefit to the heirs?
      • We have a database of clients/buyers who are always looking for new properties in Palm Beach County
      • We market our listings on social media and many websites for maximum exposure to all potential buyers globally
      • We personally show the property to potential buyers and/or their agents
      • We solicit and present the offers and will work with the Personal Representative/Heirs to negotiate the contract.
  • Assistance with Removal of Personal Property:

    The family can remove whatever they wish to keep and our Estate Sale Partners and/or cleaning crews can handle everything else with the Estate receiving the net proceeds.

  • Other Needs/Assistance:

    This might include specialized cleaning services, setting up an auction for the property or contents, but MOST IMPORTANTLY, sending the Personal Representative and Heirs a WEEKLY STATUS REPORT on all aspects of getting the property sold.

Our goal is to communicate and work effectively with all parties involved to make this process as easy as possible for all concerned!

The All About Florida Team is ready to assist you with the sale of the estate home!