Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the decedent’s assets under a valid will or, if no valid will, to the decedent’s heirs at law. A probate court decides the validity of a testator’s will (if any), appoints the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have an interest in the estate.
There are two types of probate administration under Florida law: formal administration and summary administration, both discussed below.
The process of probate can be overwhelming – especially when combined with the grief that comes with losing a loved one. Many of our clients come to us with misconceptions of Florida probate procedures. Our main goal is to help our clients gain a full understanding of the probate administration and their specific rights and responsibilities with regard to it. We strive to take as much of the burden off of our clients as possible while navigating through this process.
Feel free to call or email us today with any questions you may have about Florida Probate, or to schedule an in-person consultation.
Summary Probate Administration
“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less exempt property, such as homestead real property) 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.
(See https://www.floridabar.org/public/consumer/pamphlet026/)
Fees and Costs for Summary Administration
Summary Administration matters are billed at the following rates:$350/hr. for Attorney’s Time
$160/hr. for Paralegal’s Time
$90/hr. for Legal Assistant’s Time
Our minimum fee for a Summary Administration is $2,000. Whether the fees go beyond the minimum fee depends on the complexity of the case, number/cooperation of beneficiaries, existence of creditors, and other factors. If the case is relatively simple (i.e., one or two assets, no creditors), the fee should not be more than $2,000-$2,500.00.
In addition to attorney’s fees, there are expenses assicuated with summary administration. The court’s filing fee is currently $345 for estates worth more than $1,000, and $235 if the probate estate only includes exempt homestead property. Additional costs may include recording fees, postage expenses, and publication fees in the event a Notice to Creditors is published in the local paper.
Formal Probate Administration
In a formal probate administration, the probate court will appoint a Personal Representative (or “Executor”) to administer the estate. If the decedent had a Last Will & Testament, typically the court will appoint the Personal Representative nominated in the will.
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
- Identify, gather, value and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
How Long Does Formal Probate Take?
It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate, or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of formal 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, and a more complex estate could take a year or more to complete.
(For more information, see https://www.floridabar.org/public/consumer/pamphlet026/)
Fees and Costs for Formal Administration
Formal Administration matters are either billed as a “flat fee” pursuant to Florida Statute 733.6171 (see http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0733/Sections/0733.6171.html ) or are billed hourly, at the following rates:$350/hr. for Attorney’s Time
$160/hr. for Paralegal’s Time
$90/hr. for Legal Assistant’s Time
Our minimum fee for a Formal Administration is $4,000. Whether the fees go beyond the minimum fee depends on many factors, such as the value and complexity of the assets, number/cooperation of beneficiaries, existence of creditors, etc.
In addition to attorney’s fees, there are expenses associated with formal administration. The court’s filing fee is currently $400. Additional costs include recording fees, postage expenses, and the cost of publishing the Notice to Creditors in the local paper. Typically, the total expenses of a formal administration range from $600 to $700.