When a loved one passes away, family and friends must make many decisions, all while trying to grieve their recent loss. Additional stress and decision making can be added at this difficult time if a probate of the estate is necessary. For most people, the idea of probate seems scary and confusing. With over thirty years of experience, the firm of Linda Suzzanne Griffin, P.A. strives to walk you through this process by helping you decide which probate, if any, is required, and alleviate the legal burdens as much as possible. Please read below to learn more about probate administrations in Florida.
In Florida, probate is a court supervised transfer of assets held in a deceased person’s (a “decedent”) individual name to a beneficiary. If the decedent prepared a valid Last Will and Testament, then he or she is considered to have died “testate”. The Last Will and Testament provides how the decedent’s estate is distributed, who is named Personal Representative and usually includes other provisions regarding the administration of the estate. If the decedent does not have a Last Will and Testament, then he or she is considered to have died “intestate” and Florida Probate Code will dictate, in most cases, the transfer of assets. Florida law provides two types of probate proceedings discussed in more detail below.
Summary Administration is an abbreviated probate process designed for an estate either (a) under $75,000 (not including the value of the decedent’s homestead) or (b) when a decedent has been deceased for at least 2 years. A Personal Representative is not appointed and beneficiaries receive a court order (“Order of Summary Administration”) directing the distribution of the decedent’s assets. While Summary Administrations may have less steps than a formal administration, complications can arise in situations such as intestacy, homestead or real estate, IRS issues and other creditors. It is very important to speak with a knowledgeable attorney to guide you through this process to avoid complications or mistakes in the transfer of assets.
In a Formal Probate proceeding, a Personal Representative is appointed, either as nominated in the decedent’s Last Will and Testament or by Florida Law. A Formal Probate can last for several months to several years, depending on the issues. During the probate, a Personal Representative has many duties and responsibilities, such as ensuring estate assets are properly managed and inventoried, notifying and satisfying creditors, maintaining and possibly selling real estate, filing all necessary tax returns and distributing assets to beneficiaries. A Personal Representative is entitled to a fee for all of their efforts, which begins at 3% of an estate inventory. This fee is adjusted depending on the size of the estate. A Formal Probate can be extremely complicated and burdensome on a Personal Representative. That is why it is very important to have an experienced, probate attorney in Clearwater, FL, guiding you through the process.
There can be a lot of confusion when a person dies with a revocable trust. It is unclear if a probate administration is required, a trust administration, or, in some instances, both administrations may be needed. People often believe that the successor Trustee can simply distribute the trust assets right away and terminate the trust. Unfortunately, it is not that easy. When a decedent’s assets are held in a revocable trust, the successor Trustee has many of the same duties and responsibilities as a Personal Representative.
Unlike court supervised probate administration, a trust administration is a private distribution of a decedent’s assets to his or her beneficiaries. Most successor Trustees have had little experience administering Trusts and can become overwhelmed, especially if a trust is administered for multiple generations of beneficiaries. A successor Trustee will perform the following tasks:
A Trustee is entitled to compensation for performing the Trustee duties. Unlike probate, Florida Statutes do not provide for a fixed percentage, but a trust can dictate a certain percentage so long as it is “reasonable”. If the trust terms are silent, then subject to the beneficiaries’ approval, the Trustee is entitled to a reasonable fee.
Like probate, a trust administration is a very complex procedure that requires a deep understanding of Florida trust law, tax laws and the proper preservation of trust assets. Seek the guidance of a trust law attorney to guide you and help you achieve your goals as a Trustee.