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Probate Attorneys in Central Florida

Probate is the process where a court oversees the distribution of an estate after the death of the descendant. Most estates are designed in an attempt to minimize or eliminate the need for probate as it can be a lengthy, complex, and expensive process. However, when probate is necessary, it is imperative to have the probate handled by an experienced Orlando Probate Attorney. In Florida, there are typically two types of probate administration; summary administration and formal probate administration. It is important to discuss with your probate attorney what administration is proper given the value, complexity, and assets of the estate. Although many people believe that the probate process of an estate should be straight forward, often the issues that arise during the probate process make it more complex.

Summary Administration

Summary administration is a faster less expensive form of probate administration. However, a summary administration is only available when the value of the estate is less than $75,000 (not including the value of property exempt from the claims of creditors). It is important to note that homestead property is not included in the $75,000 limit. For example, if the descendant has a homestead property valued at $250,000 and $40,000 in a bank account, the descendant would qualify for a summary administration because the value of the assets, not including the homestead property, is less than $75,000. Summary administration is available if the value of the estate is less than $75,000 or if the descendant has been deceased for more than 2 years. Summary administration is unavailable if the last will and testament specifically state that a formal probate should be completed. In a summary administration, a personal representative is not appointed and the estate is usually probated within three to five months, unless a will contest or some other issue arises to delay the administration of the estate.

Formal Probate Administration

The formal probate administration process can take anywhere from four to twelve months depending on the circumstances surrounding the estate. In a formal probate administration, the probate documents are prepared and a personal representative is appointed. Once the personal representative is appointed, the notice to creditors must be published and an inventory must be filed with the court. The court will then make a determination of homestead property, if appropriate, and the assets will be distributed to the creditors and beneficiaries. Once the assets are distributed, the estate is closed.

Probate Frequently Asked Questions

What happens to probate assets if there is no will?
  1. Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.
  2. Surviving spouse and lineal descendants.
    1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $20,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half. Beginning January 1, 2002, the $20,000 amount referred to above changes to $60,000.
    2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.
    3. No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.
    4. No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
    5. Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent’s name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.
What is Probate?

Probate is simply the process where the Court oversees the administration of an estate where the assets are identified and then distributed to creditors and beneficiaries.

Why is probate necessary?

Probate is legally necessary to transfer property from the decedent to the beneficiaries.

What are probate assets?

Probate assets are the assets owned by the decedent at the time of the decedent’s death. However, assets that contain a provision for automatic succession of ownership at death are not included in the probate estate. For example, real estate held as joint tenants with the right of survivorship or as tenants by entirety (usually used for married couples who own real estate) would not be a part of the probate estate. Additionally, assets held in a revocable trust would not be included in the probate process.

How do I access a safe deposit box?

Typically, you need a court order authorizing the inspection of the safe deposit box. In the alternative, the letters of administration may allow you to access the safe deposit box.

Do I actually need probate?

You need probate if there are assets still held in the name of the decedent. If all assets are held jointly or have been transferred, there is typically no need for probate. It would be wise to consult with a probate attorney to make a more informed decision as to whether a probate administration is necessary.

What are letters of administration?

Letters of administration are court orders, which are issued as part of a formal probate administration. Letters of administration authorize the personal representative of the estate to begin administering the estate.

Will I have to attend court in Florida for the probate?

Typically, as long as the estate is uncontested, you will not need to attend court.

The Will says I am Personal Representative. Do I need probate?

Yes, you will still need probate if there are assets that need to be transferred.

DeWitt Law Firm, P.A.
Business Address:37 North Orange Avenue, #840,Orlando,Florida,32801,US |Tel: 407-245-7723 |Email: dewitt@dewittlaw.com.
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