Landlord and Tenant
When you lose a loved one and need to transfer your loved one’s assets according to your loved one’s wishes, the value of the assets often dictate what you have to do in order to follow your loved one’s wishes. A surviving loved one or relative must to make sure that steps are taken to transfer the assets legally and according to your loved one’s wishes. This is especially true if your loved one (also known as the decedent) has a large estate which means the value of the estate is over $75,000. An estate over this amount requires formal probate administration. In a formal probate administration, the personal representative (sometimes referred to as the executor, but this is an outdated term in Florida) is required to hire an attorney for representation. Therefore, if you are the personal representative in a formal administration, Florida law requires you to have an attorney. You and your attorney will need to work together as a team. Our attorneys are on your team and will help you navigate the formal probate administration process.
A large estate probate administration, also referred to as formal administration, is the traditional administration procedure for probating a will. The higher the value of the compensable value of the probate estate, typically the more complex the administration will be. In order to navigate a increasingly complex probate estate, you need to have an experienced attorney who can make sure that the administration is conducted in a time and cost efficient manner.
A formal administration consists of several steps. First, the location of the probate administration needs to be determined. This is called the venue of the probate proceeding. The venue of a formal administration of a probate estate is governed by section 733.101(1) of the Florida Statutes. Under section 733.101(1), the proper place to file the probate case is as follows: (1) in the county of the state where the decedent was domiciled; (2) if the decedent was not a resident of Florida, then in any county where the decedent’s property is located; or (3) if the decedent was not a Florida resident and possessed no property within this state, then in any county where a person indebted to the decedent resides. Basically, if the decedent lived in Florida when he or she passed away, the probate case should be filed in the county where the decedent was living immediately prior to his or her death. If the decedent was not a resident of Florida at the time of his or her death, then you will need to look to the other two options for the proper location of the probate administration. These guidelines are important for when you are searching for a probate attorney.
Second, a potential personal representative is identified either by the will or by the preference established by section 733.301 of the Florida Statutes. After the personal representative is found, petition for administration is filed with the probate court to admit the will, if there is a will, and to appoint the personal representative. Also either prior to, or at the same time the petition for administration is filed, the potential personal representative must file the original of the will with the court. If there is no original of the will, then you will need to consult with an attorney on how to proceed. Additionally, evidence of the death of the decedent is required to be filed with the court. This means that an original copy of the death certificate must be filed with the clerk of court in order to establish that the decedent has indeed passed away.
Third, the personal representative must be appointed by the court. Once appointed, the personal representative will receive letters of administration showing that the personal representative has been appointed and has legal authority to act on behalf of the estate. The letters of administration can then be used by the personal representative to collect the decedent’s assets and account for them in the probate estate. Typically, if there is a valid will, the personal representative will be named in the will. However, if there is not a valid will, the named personal representative is no longer available, or the personal representative does not wish to serve, a successor personal representative may need to be found to administer the estate. Under section 733.302 of the Florida Statutes, a person can be the personal representative of a probate estate in Florida if the person is a resident of Florida and is over the age of 18. An attorney will be able to tell you about whether there may be an issue with the appointment of the personal representative in the probate estate.
After the personal representative is appointed, a formal administration requires all known and reasonably identifiable creditors to receive notice of administration and notice to creditors, which is more likely to create creditor issues than in a summary administration, or small estate probate administration. This is unlike summary, where only formal notice must be served. After receiving notice, the creditors of the probate estate may then have the opportunity to file a statement of claim in the probate case. The statement of claim puts the the personal representative on notice of the intent of the creditor to collect on its claim, and provides the personal representative an opportunity to object to the the claim. Typically, if there are non-exempt assets available in the probate estate, the creditors will need to be paid in order of priority according to section 733.707 of the Florida Statutes.
The administration of a large probate estate is complex and the Florida Probate Rules require an attorney to be retained by the personal representative in order to complete the administration(unless they’re the only interested party). Therefore, the personal representative and the attorney work together to achieve an efficient administration of the probate estate. Our attorneys work closely with the personal representative to make sure that the probate estate is efficiently administered and to make the process as low stress as it can be. Contact us today for a free consultation if you think you may need a probate attorney.