The probate process is very confusing for most non-lawyers. There are terms of art that are foreign to most people. The rules are often unclear. Many Indian River County residents are not sure what the probate court is and what the court does.
We hope these questions and answers will provide some clarity. The best course of action is to contact our seasoned probate lawyers. At Lulich & Attorneys, we’re happy to answer all your questions. We help people prepare their wills and estate documents while they are alive. We also represent people in probate court to help ensure a smooth and accurate disposition of your loved one’s assets.
What legal terms are used in probate court?
Some of the common terms probate judges and lawyers use include the following:
- The administration is the collection of the decedent’s assets, payment of all expenses and bills, and the distribution of the assets to the heirs and beneficiaries.
- The personal representative needs to verify all the assets and income of the estate and all the bills that are paid. The balance is the amount that is distributed. The accounting is the math used to verify these tasks.
- These are the people named in the will who are entitled to the estate assets. The word beneficiary also refers to people named on life insurance policies and other accounts that are payable on the death of the decedent.
- Decedent. This is the person who dies.
- The executor is the person the testator appoints in the will to administer their estate when they die.
- These are the family members entitled to receive estate assets – if the decedent does not have a will.
- When a person dies without a will, his/her estate passes to his/heirs based on the intestate laws of Florida.
- Notice of Administration. This is the formal notice to beneficiaries and heirs about the probate of any will and the representation of the estate by the personal representative.
- Personal Representative. This is the person who administers the estate. The personal representative is either an executor (named in the will) or an administrator (someone approved by the probate court).
- Probate Court. The probate court validates the will, approves the personal representative, resolves estate disputes, and oversees the administration of the decedent’s estate.
- Probate Litigation. Litigation includes challenges to the validity of the will, the appointment of the personal representative, and other legal disputes.
- This is the person who prepares a will.
What Are the Types of Probate Administration?
Florida authorizes three types of administration depending on the size of the estate and other factors:
- Formal Administration. This proceeding is standard for most estates. Formal administration (probate) occurs in the County Circuit Court where the decedent lived when he/she died. The process usually starts when the executor of the estate seeks formal approval as a personal representative and seeks approval of the will. The notice to the beneficiaries explains that they have a chance to object to the appointment and contest the will.
- Summary Administration. This process is used for estates that are worth $75,000 or less or when the decedent’s death occurred more than two years ago. Normally, the surviving spouse or a beneficiary seeks approval to administer the estate. Summary administration is essentially a fast and less cumbersome probate process than formal administration.
- Disposition Without Administration. This term refers to avoiding probate due to unique conditions. It may be an option if the decedent did not own real estate and the amount of the assets are less than the costs of probate.
When is probate required?
Generally, probate is used if a decedent has a will. Probate is also used if there are assets that the decedent owns that aren’t directly payable to a beneficiary. If there are no probate assets, then probate is not required. For example, if the only assets a decedent owns are life insurance policies, bank accounts, and retirements that are specifically payable to the decedent’s spouse - then there’s no need for probate.
Probate only handles assets that go through probate. Many seniors and people with assets dispose of their assets through trusts, payable on death accounts, and other means. Property that is owned as tenants by the entirety or as joint tenants with right of survivorship passes directly to the spouse or joint owner.
Must I hire a lawyer?
Yes. Florida does require that the personal representative hire a lawyer unless special circumstances apply. [I don’t see the statute for this?]
How long does the probate process take?
The collection of assets, payment of bills, and handling of disputes take time – especially if it is necessary to sell valuable assets such as a home or a business. In most cases, the probate process takes 6 months to a year. This means beneficiaries will need to wait months or a year to receive their share.
How does intestacy work?
If the decedent had a will, then the net assets are distributed in accordance with the terms of the will. If the decedent did not have a will, then the net assets are distributed in accordance with Florida’s intestate laws. These laws generally favor the spouse and children first. Otherwise, parents and siblings may be entitled to the decedent’s estate. The intestate laws explain the rights of adoptees, adoptive parents, half-bloods, and other relatives.
What types of disputes are heard in Probate Court?
Family members who are left out of a will or beneficiaries who think they should receive a larger share may contest a will on the following grounds:
- The testator lacked testamentary capacity.
- The will was prepared due to the undue influence of a beneficiary.
- There’s a later will or a codicil to the will.
- The will did not comply with the formal Florida will requirements.
Probate court also may hear challenges to any trusts prepared by the decedent.
Make an appointment with an experienced Indian River County Probate Lawyer Today
At Lulich & Attorneys, we have been advising testators, personal representatives, and beneficiaries for 30 years. We help Vero Beach and Sebastian residents prepare wills and other estate planning documents. We represent executors and administrators in probate court. We help personal representatives respond to any challenges to the will and help the personal representative administer the estate. Our Probate Attorneys will also walk you through each phase of the estate administration process. Please call us at 772-589-5500 or use our contact form to schedule an appointment.