Formal probate administration is required by Florida law when:
1. The value of the decedent’s probate estate exceeds $75,000.00; and,
2. The decedent has been dead for less than two years.
How each asset is titled must be carefully examined to determine whether it should be included in the decedent’s probate estate. For example, jointly held property (such as a bank account) is considered a non-probate asset and would not be included in determining the value of the estate. Also, property that has a beneficiary listed (such as a life insurance policy) is likewise a non-probate asset and would not be included.
If the estate meets the above criteria, the probate proceeding is typically opened by an individual that is qualified to be appointed as the personal representative. The personal representative may be the individual listed in the decedent’s Last Will and Testament in a testate proceeding, or it may be an agreed upon person in the event it is an intestate proceeding. In some instances, two or more individuals may petition the court to be appointed as personal representative and the court will have to make a determination as to which individual is best suited.
Once appointed, the personal representative has many duties and responsibilities that are critical in carrying out their fiduciary obligation to the beneficiaries. Gathering and protecting assets, closing accounts, terminating utility services and opening an estate bank account are all common examples of duties the personal representative must undertake.
The personal representative must also address the rights of any creditors by providing formal notice of the decedent’s death to any known or reasonably ascertainable creditors. Formal notice filed in the local newspaper provides notice to any unknown creditors. After receiving proper notice, creditors have a limited time to file a statement of claim against the estate or the claim may be barred forever. Any claim filed against the estate must be properly addressed before the estate can be closed.
Once the creditor period has expired, the personal representative must provide an accounting to the court and the beneficiaries. The purpose of the accounting is to report all activity regarding the estate property. This accounting will show any receipt of income, the sale of property, any prior disbursements and the payment of expenses. Beneficiaries are given an opportunity to object to the accounting if they do not agree to a particular accounting entry. If all parties agree, the accounting may also be waived.
Upon expiration of the accounting period the personal representative will distribute the assets and request to be discharged from further responsibility.