The Miami Probate Attorneys at the Law Office of Fausto Rosales, P.A. have extensive experience in probate matters. The need for probate arises when an individual passes away owning assets, whether or not there is a Will. Some people plan to avoid probate. Trusts (link to estate planning/trusts page) and similar instruments can help the post-death transfer of property without the need of probate. However, if no such instruments are in place, or if there are assets in the deceased’s name at the time of death that need to be transferred (either according to a Will (link) or under the laws of intestacy), a probate case is likely necessary. Probate is a court-supervised proceeding that identifies and facilities the transfer those assets, among other things. Depending on the circumstances, there are different types of probate cases.
1. Formal Administration
Formal Probate Administration is required when a decedent has been dead for two years or less and when the value of the probate estate exceeds $75,000. This process can take anywhere from 4-6 months, or longer depending on the nature of the assets in question, whether there is any litigation within the probate case, whether claims are filed against the estate, and whether assets are being sold from the estate, among other things. Once a personal representative is appointed, the assets are compiled and claims against the estate, if any, are satisfied. Then, the personal representative can distribute the remaining assets to the beneficiaries of the estate. Beneficiaries are determined by a Will, or, if there is no Will, then under the laws of intestacy. Florida law dictates the order of heirs. After distribution, the personal representative may petition the court to discharge them from that position and complete the probate case.
2. Summary Administration
According to Fla. Stat. §735.201, Summary Administration is available:
in a testate estate (an estate in which the decedent had a will), the will does not direct administration;
the value of the entire probate estate in Florida, less the value of exempt property, does not exceed $75,000 OR the decedent has been dead for more than 2 years.
The logic behind the 2-year mark is that Florida law limits creditors to 2 years in which they are permitted to file claims against an estate. After that, with limited exceptions, those claims are barred forever.
3. Disposition of Personal Property Without Administration
As indicated in the title, this is not “administration” of an estate. This type of procedure is available when someone dies leaving only certain exempt personal property (i.e., a personal automobile and certain furniture) and that property does not exceed in value the sum of funeral expenses (up to $6,000) and reasonable medical expenses in the last 60 days of illness.
If you or someone you know is unsure whether Probate is necessary, or the type of probate proceeding necessary after a loved one passes away, the Probate Attorneys at the Law Office of Fausto A. Rosales, P.A. can explain these proceedings in more detail and help you determine the next steps in your situation.
Sometimes Probate is not so straightforward. Unfortunately, the Probate Attorneys at the Law Office of Fausto A. Rosales have seen a number of cases that hit stumbling blocks along the way, causing litigation. Some examples of these scenarios include, but are not limited to creditors’ claims, Trust/Will Contests (i.e., a challenge to the validity of a Will being admitted to Probate), allegations of undue influence or fraud, disputes over entitlement of certain property in an estate, or when the acting personal representative is not properly managing the estate. These situations lead to, often times, contentious litigation. If you or someone you know anticipates litigation in an estate they are involved in, or if there are questions regarding your rights or protecting your interests with respect to an estate, the experienced Probate Attorneys from the Law Office of Fausto A. Rosales, P.A. are willing and able to discuss your situation.