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Florida Probate FAQ

What is Probate?

Probate in Florida refers to the process where the State of Florida recognizes the Personal Representative or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate process provides the rules and oversight of that process. For a Florida estate, the initial step is to have the will recognized as valid by the Surrogate of the county where the deceased was a resident. For example, if the deceased was a resident of Palm Beach County, the will is filed with the Palm Beach County Surrogate. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the Surrogate accepts the petition for probate, then paperwork is given to the Personal Representative or administrator authorizing them to represent the estate. Probate has begun.

Where do I Probate the Florida Will?

The will is registered with the Surrogate of the county that the deceased was a resident. For example, if the deceased died a Naples, Florida resident the will is probated with the Collier County Surrogate.

What if I am a Personal Representative but I Don’t Live in Florida?

Our experienced Probate teams can make arrangements for you to be sworn in as Personal Representative outside of Florida. In most cases, we can make arrangements so that you will never have to come to Florida at all. Because we focus our practice on Probate matters, we can help make the probate process as easy for you as possible.

How Long Does Probate Take?

There is no set time limit for an estate’s probate. As explained below, I often tell Personal Representatives to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the Personal Representative look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid. Florida’s Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate. Here are a few common examples of tasks that will force an estate to stay open longer than others:

  • The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. In Florida, this will mean at a minimum filing a final 1040. You may not be able to file these returns until the year following the death.
  • The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS. Once filed, it can take months to determine if the return has been accepted as filed.
  • Sale of Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over 6 months. Specialized property, such as commercial property or a farm can take even longer.
  • Creditor Claims: Creditors of a Florida estate can bring their claims and the Personal Representative must deal with the claims. If the Personal Representative releases the estate’s funds to beneficiaries, and a legitimate creditor is discovered, the Personal Representative might be personally liable to the creditor if the estate funds cannot be recovered from the beneficiaries. Most Personal Representatives find it wise to hold the estate assets until the date for creditor claims has past.

What if the Decedent Left No Will?

If a Florida resident dies without a will, the estate assets will pass according to the Florida Rules of Intestacy. The Probate Lawyer will then file a different petition with the Surrogate to have an Administrator named, rather than a Personal Representative. The rules that cover who can serve as Administrator are rather complex, so if you have a relative who died without a will in Florida, feel free to contact us to help explain the process.

What are a Personal Representative’s Duties and Responsibilities?

Once a probate petition is accepted, the Personal Representative or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. A Florida estate must make certain reports to the Surrogate, which differs from the reporting for a Philadelphia estate’s reports to the Philadelphia Register of Wills. Strangely, even within a state the various reporting standards may differ.

A Probate Attorney versed in the rules of Florida probate can advise the Personal Representative on these reports. In the end, before distributing any funds, the Personal Representative should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the Personal Representative can be forced to return to court years later and account.

As Florida Probate Attorneys, we regularly represent Personal Representatives, administrators and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.

What is a Personal Representative’s Accounting?

A Personal Representative’s accounting is the report of the Personal Representative’s financial actions from the date the Personal Representative began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the Personal Representative plans to distribute the assets to the beneficiaries. In Florida, these accountings can either be informal accountings or formal accountings.

Why Should the Personal Representative Prepare an Accounting?

The Personal Representative should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the Personal Representative unless the Personal Representative can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the Personal Representative will need to provide an “accounting” of the assets and expenses.

Can the Beneficiaries Force the Personal Representative to Prepare an Accounting?

In Florida, the heirs can force the Personal Representative to account by filing a Petition. If they satisfy the judge, an order to account is issued.

What if the Personal Representative Cannot Explain Where Assets Went, or Why Expenses Were Incurred?

If the numbers do not add up, the Personal Representative maybe found personally responsible for any shortfall. The court can “surcharge” the Personal Representative for the difference.

I am a Personal Representative, How Can a Florida Probate Attorney help me with an Accounting?

When filing an accounting, the Court requires the account to follow a specific format. The accounting must also be submitted with a specific petition. Further, accountings and the accompanying petitions may vary from County to County within Florida. An experienced Probate Attorney who focuses in accountings is familiar with these differences. It is better to provide the Court a Petition in the correct format, rather than having the judge find it incomplete and order the Petition refilled.

I am a Beneficiary, How Can a Florida Probate Attorney help me with an Accounting?

At times a Personal Representative may refuse to provide a beneficiary with an acceptable accounting. The Court has created a system that allows a beneficiary to force the Personal Representative to provide an accounting. Our firm has been forcing Personal Representatives to file Accountings for over 20 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.

What Tax Returns Does a Florida Personal Representative File?

It is important that all tax returns are filed correctly and in a timely fashion. The Personal Representative or Administrator is Personally Liable for errors that harm the beneficiaries. Filing a late tax return means interest and penalties for which the Personal Representative may be personally liable. When a Personal Representative hires a Probate Attorney that Lawyer’s primary job is to advise and protect the Personal Representative. Probate Lawyers are well versed in preparing all estate related tax returns and can help make sure all returns are filed correctly and timely. In Florida a Personal Representative may have to file the following returns:

  • The Deceased’s final Form 1040 (Income tax)
  • The Deceased’s final Form PA40 (Income tax)
  • The Form 706 (Estate Tax)
  • The Form 1041 (Estate’s income tax)
  • The Form 709 (Gift Tax)
  • Payroll Taxes
  • Specialized Taxes that the Deceased’s business might owe.

Do I Need to Come to Florida to Probate the Will?

If you have the original will and an original death certificate, our firm can set up a process where you are sworn in as Personal Representative in your home county. There is no “reading of the will” required, so for most estates our clients never have to come to Florida.

Please contact us for a free consultation regarding all of your Probate needs in Florida.

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