Naples Probate Lawyer
Probate is the court-supervised process used to identify and gather a deceased’s assets, pay debts owed by the deceased, and distribute assets to beneficiaries in accordance with the terms of the Will or Florida laws on intestate succession. Most of the tasks required in Probate fall on the shoulders of the estate’s Personal Representative, also known as the Executor or Administrator. The Personal Representative (PR) is named in the Will or appointed by the court. Often, the PR is the surviving spouse or some other close family member of the deceased. Put another way, the PR is often a person who is grieving, distraught, overwhelmed, and has absolutely no experience or expertise with probate or estate administration. Unfortunately, PRs can be held personally liable to estate beneficiaries if they make mistakes in probate that adversely impact the estate.
Personal Representatives simply can’t handle Probate without professional help, nor should they. At Nici Law Firm, P.L., you’ll find a Naples probate lawyer with over 25 years of experience who is Board-Certified by The Florida Bar as a Specialist in Wills, Trusts and Estates. Attorney James R. Nici can help you prepare and file accountings and other required documents, answer all your questions, and offer technical assistance throughout the entire process so your Probate Administration can conclude smoothly, successfully, and with a minimum cost to the estate in terms of time and expense.
What is involved in the Probate process in Florida?
One can never predict what will happen in Probate, and something unexpected always comes up, but basically, Probate in Florida goes by the following process and involves the following steps:
The Personal Representative files a petition with the court to open the probate estate. How long you have to file this petition and what document you must file depends upon whether the decedent died testate (with a Will) or intestate (without a Will).
If there is a Will, it is submitted to the court and proven to be valid. The word Probate, in fact, comes from a Latin phrase meaning “to prove the Will.” Wills that are properly signed and notarized may be “self-proving.” Otherwise, the persons who signed the Will may be called to testify or submit affidavits regarding the Will. Heirs and others may also challenge or contest the Will’s validity. This is more likely to happen in a blended family where children from a previous marriage are favored or disfavored in relation to the surviving spouse, or where a family member was cut out of the Will or did not receive an expected inheritance.
The Personal Representative must locate and notify heirs about the Probate. Creditors must also be notified, and a notice of the death needs to be published in an appropriate medium, such as a local newspaper.
The PR needs to identify, locate, gather and inventory all assets of the estate.
The PR pays valid debts owed by the estate. Debts are paid out of estate proceeds before distributions are made to heirs. This process may involve liquidating assets to pay debts. It may also involve objecting to improper claims and resolving disputes, including defending the estate in court.
The PR files a personal tax return for the decedent and a return for the estate, if required.
Throughout the probate process, the PR needs to manage, invest or liquidate property as needed to maximize the value of the estate as a fiduciary to the estate’s heirs and beneficiaries.
The PR transfers and distributes assets of the estate to heirs and beneficiaries under the terms of the Will.
The PR files any documents necessary to close the estate.
Can Probate be avoided or minimized?
Given all the tasks described above, it is easy to see how Probate can become expensive and time-consuming. Probate involves the transfer of ownership of assets from the decedent to the intended beneficiaries. Any transfers that can be completed before death won’t have to go through Probate and will lessen the overall time required for probate. There are many ways to take assets out of the Probate Estate during your lifetime without losing the benefit of that property. For instance, all of the following methods can be used to transfer property outside of Probate:
- Jointly title real estate as Joint Tenants With Right Of Survivorship (JTWROS)
- Jointly title your car or other personal property with the person you want to receive the property
- Designate an heir as the beneficiary of a life insurance policy
- Designate an heir as the beneficiary of a retirement or pension plan
- Maintain joint bank accounts with a beneficiary
- Designate a bank or investment account with a “Payable on Death” (POD) or “Transfer on Death” (TOD) provision
- Transfer property into a Revocable Living Trust
Also, certain small estates don’t have to go through Probate at all. Florida Statutes Section 735.301 provides for an informal Estate Administration outside of Probate, known as “Disposition Without Administration.” To qualify, the estate can only be composed of personal property (no home or other real estate), and all of the property must be exempt from creditor claims under Florida law or the constitution. Exempt property under Florida law includes up to $20,000 in household furniture, furnishings and appliances, and two motor vehicles. Nonexempt personal property is only allowed to the extent its value does not exceed the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses from the last 60 days of the decedent’s final illness.
This process involves filing a letter or affidavit with the court, which then authorizes payment or disposition of the personal property. Disposition Without Administration takes about a month to complete.
Avoiding Probate is an important aspect of Estate Planning, but it is by no means the be-all and end-all of Estate Planning. There are many other important aspects to consider, including Estate & Gift Tax Planning, Special Needs Planning, Charitable Trusts, Creditor-Protected Inheritance, and much more. Definitely discuss Probate avoidance with your Estate Planning attorney, but never lose sight of what is most important to you and the reasons you are creating an Estate Plan in the first place.
Florida Probate FAQs
If you’ve been named in a will or appointed by the court to serve as the Personal Representative of an estate, it is likely that you are a close family member of the deceased. You are someone the deceased trusted with an important task, but it’s not a job you’ve likely done before or know how to do. There are a host of tasks associated with the probate of an estate, and estate administrators can be liable to heirs and beneficiaries if they make mistakes. Get a handle on the job before you begin by reading the following common questions people have about probate in Florida, and contact an experienced, professional probate attorney for help.
What is probate?
Probate is a legal process that takes place under court supervision, although most of the tasks involved take place outside of a courtroom. Probate is a necessary procedure to transfer ownership of property from the decedent to heirs and beneficiaries. If there is a will, the will must be submitted to probate and proven valid so that its terms can be carried out. If there is no valid will, probate follows the rules of intestate succession outlined in Florida Statutes Chapter 732. See our page on probate for a more detailed look at the probate process and the tasks involved.
How long does probate take?
At a minimum, probate cannot be accomplished in less than three months, since that is how long creditors have to bring claims against the estate after the administrator notifies creditors and publishes notice of the death. Apart from the notice period, heirs must be located, and claims must either be paid or disputed, which could involve a period of negotiations or litigation. Heirs may also bring will contests or other challenges.
Because of all the tasks involved in settling an estate, probate typically takes about a year or a little longer. In the case of large or complex estates, the process can take a couple of years to conclude. Having an experienced probate lawyer available to answer questions and provide technical assistance to the estate’s personal representative can help speed the process along. Also, it may be possible for estate beneficiaries to receive some distributions even while probate is ongoing. Your probate lawyer can discuss this process with you if desired.
How much does probate cost?
Probate and estate administration includes a number of different costs, typically including court costs and filing fees, fees for real or personal property appraisals, accounting fees, and storage fees. These costs can run into the thousands of dollars, depending on the property included in the estate. Also, the personal representative is entitled to reasonable compensation for performing required duties. This compensation may be set out in the will, a contract or other agreement. Fees are presumed reasonable if they conform with guidelines in the law, which range from thee percent of the first million dollars of the estate up to 1.5% of the value of the estate over $10 million. The probate judge can also determine the appropriate amount of compensation if extraordinary services are involved. The personal representative is entitled to compensation for extra work such as selling property, litigating claims, or keeping the decedent’s business going.
Probate costs are taken out of the estate before distributions are made. Other costs include taxes, debts and claims against the estate. It can be a good investment to hire an experienced probate attorney who can help the estate administration proceed most efficiently and cost-effectively for the people who stand to inherit.
Is the administrator’s fee taxable income?
Yes. If you are concerned about the tax implications of your fee for serving as a personal representative, consider waiving the fee if you are also a major beneficiary of the estate. The amount of your fee goes back into the estate, and you’ll get a portion through your inheritance, which is not taxable income. This is something to discuss with the attorney helping you with probate matters. Naples probate lawyer James Nici is a board-certified specialist in Florida estates law who also holds a Masters of Law in Taxation. At the Nici Law Firm, P.L., we can help you solve vexing tax matters related to the probate of an estate.
What is the difference between probate and non-probate assets?
Probate property includes assets which were owned only by the deceased at the time of death. Probate property includes all of the deceased’s personal property, even if it is not titled in the deceased or there is no certificate of ownership.
Non-probate property, in contrast, was owned jointly by the deceased and another, such as jointly titled property and joint bank accounts. Property placed in a trust is also non-probate property since it is not titled in the deceased’s name. Similarly, property with a designated beneficiary is not included in the probate estate, such as the proceeds of life insurance policies, bank accounts and IRAs with payable on death (POD) provisions, or securities, stocks and bonds with transfer on death (TOD) provisions.
Just because a piece of property is jointly titled, it might still not escape probate. For instance, in Florida, a joint tenancy with the right of survivorship (JTWROS) is non-probate, as is a tenancy by the entireties, but a tenancy in common is part of the probate estate. This is one more reason to engage with a knowledgeable and experienced specialist in estate planning and probate matters.
Our Naples Probate Lawyer Will Guide You Through Florida Probate & Estate Administration
For knowledgeable, professional assistance in all aspects of Estate Planning and Probate in Florida, contact Nici Law Firm, P.L., at 239-449-6150 or contact us online for a complimentary consultation with a Florida Board-Certified Specialist in Wills, Trusts and Estates. Our Naples probate lawyers serve clients throughout southwest Florida from Marco Island to Bonita Springs and Estero.