Frequently Asked Questions about the Probate Process
Who will be involved in the Probate Process?
The following list includes those who may be involved in the probate process, depending on the financial situation of the decedent:
- Clerk of the Circuit Court
- Circuit Court Judge
- Personal Representative/Executor
- Personal Representative’s Attorney
- Claimants (those who the decedent was in debt to – creditors, health care providers)
- IRS (if the decedent owed any federal income taxes or estate taxes)
- Florida Department of Revenue
- Surviving family
- Other beneficiaries
Is probate necessary if there is a surviving spouse?
Probate is necessary if the decedent owns ANY property solely in their name. If everything is part of a joint account or has a joint owner with rights of survivorship, then probate wouldn’t be necessary.
Do I need an attorney to go through the Probate process?
Florida law requires a personal representative to retain an attorney unless the individual is the only interested party. However, the probate process is complex, and most non-attorneys would have a hard time working through it without the assistance of an attorney.
Where do I file my Probate Paperwork?
You should file all probate paperwork with the Clerk of the Circuit Court in the county where the decedent lived prior to death. There will usually be a filing fee, which must be paid upfront, to initiate the probate process. Appropriate paperwork, including the will must also be filed with the Clerk of the Circuit Court.
Is it ever too late to start the probate process?
The short answer is no. Probate initiation is technically plausible for several decades. However, the longer you wait, the more complicated the process may become. For example, if an original heir passes away, then their inheritance would transfer to their own estate, and so on. You could also be subject to other statute of limitations (ie. Electing to take an undivided one-half interest in the homestead estate as a tenant in common must be done within 6 months). The sooner you begin the probate process, the smoother it will go, barring any disputes among beneficiaries.
Who pays the bills of the decedent?
Unless you were a co-signer on a loan or account to which debt was owed, the beneficiaries are not responsible. However, the estate is. All properly filed claims of debtors will be paid out before anything is transferred to the beneficiaries.
Who will supervise the Probate process and make final decisions?
A Circuit Court Judge will preside over the probate process. He or She will assess the validity of a will, appoint a personal representative, if necessary, and insure that assets are divided in accordance with Florida Law.
Is the decedent’s life insurance policy included in Probate?
It depends. If the life insurance policy has a named beneficiary, then typically the insurance company will release the funds directly to that person after the paperwork is filed. If there is no named beneficiary, then the life insurance policy will be processed as part of the estate. If processed as part of the Estate, the proceeds are subject to creditors claims. If the policy is paid to a named beneficiary, then those funds are exempt from creditors claims. The only exception to paying the proceeds to a named beneficiary is if the funds are necessary to fund a spouse’s elective share.
Call 407-648-4940 or contact Coye Law Firm today for a free, private strategy session about your case.
The expert estate planning attorneys at Coye Law Firm are experienced with Florida, New York, Michigan, and District of Columbia law and are here to help.
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From my Probate Special Report you will learn…
- The 13 responsibilities that a personal representative has.
- The 5 different ways a personal representative’s fees may be determined.
- The 3 different ways a Probate attorney’s fees may be determined.
- All individuals who may be involved in the probate process.
- What you need to organize in order to move the probate process along quicker.
- What to do with leftover medical bills and Medicaid.