PROBATE PROCESS
The probate process is a process supervised by court to identify and gather assets of a decedent (deceased person) and pays the debts owned by the decedent. The remaining assets are then distributed among the beneficiaries. The decedent’s assets are first used to pay the cost of probation, then to pay the decedent’s debts and the beneficiaries are distributed the remaining assets lastly. Probation in Florida is governed by the Florida Probate Code under the Florida Statutes at Chapters 731 to 735. The rules that govern the probate proceedings in Florida are part I and part II under Florida Probate Rules. Under the Florida laws, there are two forms of probate administration namely summary administration and formal administration. Another administration, which is non-court supervised exists but only applies in limited situations.
TASKS TO COMPLETE PRIOR TO PROBATE
The first task of an executor is to ensure the property is safe. The executor should ensure the property if unoccupied is securely locked and the utilities are turned off such as gas, electricity and water supplies. The executor should then hire a probate attorney to oversee the whole process. The other step is to plan effectively on how to go about the process. Planning should start from gathering probate documents such as bank statements, mortgage papers, car registration documents, tax assessments and insurance documentation. In the planning stage, the executor should ensure all documents and information that will be used in the probate process are available.
HOW THE PROBATE PROCESS BEGINS
The process starts once the owner dies. The first step in probate litigation is to determine the validity of the Last Will and Testament if any is available. The court inspects the will and if it is genuine and valid, the court admits the will to probate. The next step is the appointment of a representative of the estate if the decedent did not indicate the executor of the will or if the executor is dead or not willing to take part in the process. If there is no executor, a close relative should apply for appointment as the administrator.
In most occasions, people who seek for this role are adult children and the surviving spouse. If a dispute occurs, the court appoints a neutral public administrator to act as the administrator. The administrator and executor can be both referred to as the personal representative of the decedent and have identical responsibilities and legal rights.
The person seeking to be appointed as the executor should file petition for appointment at the court. A date for appointment is set. Once the executor is appointed, he or she is given full authority to take care and manage the property and accounts of the deceased. The person appointed is given the letter of administration. Once the appointment is done, the actual probate process begins.
BASIC STEPS IN THE PROBATE PROCESS
1. Collection, Inventory and Appraisal of all Assets
Once appointed, the administrator or executor is mandated with inventorying the estate assets of the deceased. The assets include money owed to the estate or to the decedent. The money can include paycheck, loans, retirement accounts, life insurance and or retirement accounts among others applicable. The accuracy and detail of the inventory process is determined by the degree of scrutiny and circumstances shown by other involved parties.
2. Paying Bills, Estate Expenses, Creditors and Taxes
The representative of the estate is not personally liable for paying the expenses of the decedent out of pocket if the state resources are not available. The children and the surviving spouse are given an allowance that varies from state to state irrespective of whether there is a will or not. The allowance is the top priority and is set aside first. The other expenses are paid in the following order:
- Costs of administration
- Funeral expenses
- Debts and taxes
- All other claims
The executor pays all the valid claims and rejects the invalid ones. The administrator can seek the services of an attorney to advice, defend or negotiate any legal claims.
3. Distributing the remaining assets of the decedent
After all rightful claims, expenses and debts are paid; the remaining property is distributed according to the will. If there is no will, the executor distributes the property to beneficiaries according to the state laws. The executor can distribute the assets in form of money or in kind if the will does not specify otherwise. The executor is then required to give the final settlement on all dealings undertaken on behalf of the estate. If the judge approves the settlement, the estate ceases to exist and the executor has no further roles.
