Probate

Probate Law Overview

Sanchez Law Group is a Florida probate law firm providing comprehensive legal representation on probate matters to clients throughout the state. Florida probate attorney Desiree Sanchez has over 20 years of experience handling a wide variety of probate matters, and is committed to providing clients with the exceptional personal attention and thoughtful legal advice they deserve.

Florida Probate

In Florida, probate is the court-supervised process of identifying and gathering the assets of a deceased person, paying the deceased individual’s debts, and distributing all assets to eligible beneficiaries. The Florida Probate Code governs all Florida probate proceedings, and in most Florida counties, these proceedings take place in a specialized probate division of the Florida Circuit Courts. This allows judges experienced in probate matters to oversee the process.

Probate proceedings are required to ensure that a deceased individual’s debts are properly paid off, all financial affairs are concluded, and to ensure that assets are properly passed to the correct beneficiaries. This is especially important where there is no will to follow. However, probate is also required even where a valid will is available in order to ensure that all correct procedures are followed.

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Probate Administration

Florida probate procedures are required in two situations: (1) when the deceased individual was a Florida resident with assets in Florida; or (2) the deceased individual was not a Florida resident, but assets owned by the deceased are situated in Florida. Florida probate can also proceed through either a formal administration or summary administration process. Summary administration is allowed where the assets of the deceased are less significant or more time has passed since death.

Probate Assets

A probate proceeding must be conducted in Florida only when probate assets exist. Probate assets are those assets that are owned solely by the deceased at the time of his or her death. Any assets jointly owned or that indicate a designated beneficiary, such as a life insurance policy, are not subject to probate administration. Determining which assets are subject to probate can be a complicated matter. Additionally, when an individual designates beneficiaries or leaves no assets in his sole name, this can render a will ineffective, a fact that is often misunderstood. If you are considering your will or are the beneficiary of assets of someone recently deceased, it is important to find a qualified Florida probate lawyer who can help you navigate the probate process and determine what your rights and responsibilities may be.

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Helping You Through the Probate Process

If you have a family member or close relative who recently passed away or know that you are the intended beneficiary of a deceased’s assets, you may benefit from the advice and representation of an experienced and knowledgeable Florida probate attorney like Desiree Sanchez who is equipped to handle a wide variety of probate matters. We have experience helping clients deal with issues as simple as inheriting Florida property from a parent and as complicated as administering an estate based in Florida from outside of the country. No matter the level of difficulty, Sanchez Law Group is prepared to provide clients with the personalized attention and careful guidance necessary. To schedule a free consultation to discuss your probate issues, contact us today.

Probate Process

Florida probate lawyer Desiree Sanchez has over 20 years of experience assisting clients through all aspects of the probate process, including probate administration, will contests, probate litigation and simple receipts of inheritance. Sanchez Law Group can help you understand the process from start to finish and can work with you to protect your rights and the rights of your loved ones.

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Beginning the Probate Process

Probate is the process of identifying the assets that belong to an estate, using those assets to pay any outstanding debts or obligations, and distributing the remaining assets to the beneficiaries identified in a will or, if no will is available, according to the laws of Florida. Upon the death of an individual, the first step in the probate process is the opening of the estate. This happens when the personal representative identified in a will, or an intended beneficiary of the estate notifies the court of the need to open and administer the estate.

In order to prepare for the opening of the estate, several steps should ideally be taken in order to ensure that the future probate administration proceeds as smoothly as possible. Firstly, the personal representative of the estate should begin to assess the nature of the estate, including its size, assets to be included, and possible outstanding debts. As all assets must be accounted for during the probate administration process, it is important to begin to develop a list of these assets and their relevant details.

The personal representative should also seek out a qualified Florida probate attorney. Under Florida law, a personal representative is required to hire an attorney unless (1) the personal representative is himself an admitted Florida attorney or (2) the personal representative is the only interested party to the estate. A qualified attorney will help guide the administration of the estate and anticipate any issues that may arise or lead to probate litigation.

Opening the Estate

Once the personal representative has begun a preliminary identification of the assets of the state and hired an attorney, the formal paperwork for the opening of the estate can be filed with the Florida probate court. Opening the estate must proceed in a very specific manner and includes:

  • Filing a Petition to Open the Estate With the Court
  • Filing Proof of Death for the Deceased
  • Filing an Oath of Office
  • Providing of the Bond by the Personal Representative, Though This Can Sometimes Be Waived
  • Serving Notice of Impending Estate Administration to All Interested Parties, Including Family Members, Beneficiaries, and Trustees, as Well as Publishing Notice for Any Potential Creditors.

After these steps are followed, the court and personal representative may move forward with the administration of the estate. If creditors or interested parties notified of the estate administration take issue with its proceedings or any will be related to the estate, they may raise these issues through an objection to the court, and the parties may proceed to litigation. Thus, in the context of a complicated or highly contested estate, the probate process can take years before completion.

Checklist for Executors for Settling an Estate

You Have Been Appointed Executor of An Estate in Florida. What do you do now? Here is a basic checklist for executors for settling a probate estate, including a list of tasks to perform is below.

Review Decedent’s Will Carefully

The first step on this checklist for executors is for the nominated executor to review the Will. Take note of the general bequests and specific bequests. A general bequest is a note from the Decedent to distribute a portion of assets to a person. If there are specific bequests in the Decedent’s Will, you should immediately go and locate those specific items, take inventory of them, and hold them for safekeeping until you can distribute them.

Also, take note of whether the house is specifically devised or whether there is a directive that the house be sold and the proceeds distributed to certain people.

Checklist For Executors Collect all of the Decedent’s Assets

A common question I receive is how to locate the Decedent’s assets. This is where you may need to put on your investigator hat and figure out where the money is and how you can collect it into the estate account. You should review the Decedent’s mail and bank statements. You should contact the Decedent’s accountant and financial advisor if they have one. You should review the Decedent’s tax returns. The tax returns will have information on any account that generated over $10 in interest for the year. Once you locate the assets, you will want to go to the bank or financial institution and collect those assets. That means that you close the Decedent’s account in their personal name and open an estate account to deposit the funds. Don’t forget to check the Unclaimed Funds and those pesky Computershare stocks.

Checklist For Executors Open an Estate Account

Once you collect the Decedent’s liquid assets, you are going to need a place to put them. You cannot put them into your own bank account as some may consider this stealing or commingling. You have to create a new bank account. You cannot use the Decedent’s social security number. You have to obtain a new tax identification number. You can obtain a new number by filling out a form with the IRS online. You will then go to the bank with a copy of the new tax identification number (EIN), the death certificate, the money you want to deposit, and a certified copy of the Letters of Administration that you obtained from the Court giving you authority to act. You can then put the money into an estate account and safeguard it.

Sell Property that Must or Can be Sold

The next step on your Executor’s Probate checklist is to figure out whether the Decedent has real property and whether that property needs to be sold. Speak with the attorney about any offers you obtain in the mail that are deemed reasonable. Most of the time, it is best to seek the services of a real estate professional as they can generally obtain a higher price, depending on the condition of the home. The law firm has identified a qualified list of experienced real estate professionals that work with our clients to assist with the sale of their property at a negotiated discounted rate should the client choose.

Obtain Appraisals and Valuations

If you are an Executor of an estate that owns a business that must now be sold, then you will want to obtain an estate appraisal of the asset. An appraisal or valuation is an estimate of what a business is worth. If there is a property, an experienced real estate professional can share a comparative market analysis with you. And if there are vehicles, you can take the vehicle to get appraised at a dealership like CarMax or refer to Nada.com and refer to average trade-in values.

Pay Bills, Debts, and Taxes

After you have collected all the assets and determined their value and figured out what has to be sold, you should shift focus to determining what bills and debts of the Decedent must be paid. No unsecured debts should be paid unless a valid claim is filed with the court and the estate has non-exempt assets to pay the debt or both the firm and client find it is in the best interests of the estate to pay the debt. Payment of expenses and obligations are paid in accordance with Florida Statute 733.707.

If the estate you are handling is greater than 12 million dollars, you may have to deal with a Florida Estate Tax. You may want to discuss this with your accountant.

Prepare an Accounting

The next steps in this checklist for executors is to prepare an accounting to the beneficiaries of the estate to show them what money came in and how it was spent and what is left. There are a number of ways to prepare an accounting. Obviously, the easiest would be an informal accounting that does not require Court approval. This generally means providing bank statements to the beneficiaries for review. If the beneficiaries question some of your decisions, then you may want to do a formal accounting so that you have Court approval of your actions as the Executor. Our firm can put you in communication with an accountant to employ them for these services. Note that not all accountings must be approved by the Court as the beneficiaries can sign a Waiver of Accounting to save on costs and time.

Checklist for Executors Make Distributions

The last step is to distribute the remaining assets to the beneficiaries. There are two types of distributions that can be made. There can be a partial distribution. A partial distribution is where you distribute some of the money. If you know that the estate administration process will take a long time, then you may want to consider making a partial distribution. If the administration process will be relatively simple, you may just want to make one distribution at the end after everybody has approved of your accounting or has signed waivers of accounting. Regardless of when you distribute money, always make sure that the beneficiaries sign a RECEIPT/RELEASE so that if anything goes wrong, you can get the money back.

Closing the Estate

Once all claims to the estate have been addressed, all debts paid, and all assets accounted for and readied for distribution, the Florida probate court may conclude that estate administration is complete. At this point, the attorney may then file a petition to close the estate. In order to ensure that future issues do not arise related to the estate, the attorney may attempt to obtain “waiver and consent” forms from all interested parties consenting to the filing of the petition to close. If the parties will not agree to sign such forms, the personal representative must provide a formal accounting of all actions taken during the administration of the estate in order to provide a clear record of how all assets were distributed. The court will then approve this accounting and, after the distribution is complete, discharge the personal representative and close the estate.

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Helping You Through The Probate Process

If you have a family member or loved one whose estate has entered the probate process, Florida probate lawyer Desiree Sanchez and her team are here to help you. Whether you have been named personal representative of an estate, believe you are the beneficiary of a will or are a creditor with a claim against an estate, Sanchez Law Group can help you to understand the options available to you and how to handle the complexities of the probate process. To schedule a free consultation, contact us.