Avoiding Probate-Florida Rules You Should Know

If you’ve recently lost a loved one and are now having to deal with their personal items and other parts of their estate, you may wonder what your next steps should be. You must transfer everything that belonged to them to the heirs as outlined in their will. If they didn’t leave a will, you will need to follow the laws for Florida on estates.

You must go through a process called probate where the courts will oversee the handling of your loved one’s estate according to state law. While probate is similar in all states, each state has its own timelines and statutes that govern the details of how the process should go. It’s important to understand these laws and ensure you follow them.

Hourglass showing the passing of time - how long probate takes varies by state.

Is Probate Required in Florida?

In most cases, probate is required in Florida when someone passes away. The only exceptions are if the estate was in a living trust or if all assets were able to be transferred to a listed beneficiary. If the decedent was the sole owner of the assets or if they were a co-owner with no legal provisions for transfer to the other owners at death, the estate will need to go through probate.

How Can Someone Avoid Probate in Florida?

It is possible to avoid probate in Florida but it takes planning. The best way to do this is by setting up a living trust with all the assets of the estate included. After the person dies, the trust beneficiary automatically receives the assets of the trust.

Another option is to have a named beneficiary to as many assets as possible. For instance, you can have life insurance policies and retirement accounts listed with a beneficiary who will receive these assets after the owner dies.

Estate Planning as a Way of Avoiding Probate in Florida

One of the best ways to avoid probate in Florida and other states is with an estate plan. Estate planning consists of establishing a plan that details who will receive your assets when you can no longer handle them yourself.

Estate plans can involve real estate, vehicles, financial and insurance accounts. Essentially, your assets have a named beneficiary to whom your assets will transfer on death and avoid probate.

Avoid Probate with an Enhanced Life Estate Deed

For real estate, you can set up an enhanced life estate deed in which you remain in control of the property while you are alive. When you die, the property will pass to the named beneficiaries without going through the probate process.

Basically, with an enhanced life estate deed, the deceased’s property will transfer on death to the beneficiaries. However, while the beneficiaries may be named on the property, they will not have any rights or control over the property while the owner or “life tenant” is alive.

Be aware, an enhanced life estate deed is very different than a standard life estate deed in which the beneficiaries, or remaindermen, do have a say in how the property is handled and managed while the owner holds only the right to live on the property until death.

Can an Executor of an Estate in Florida be Compensated?

Florida not only allows for compensation to an executor of an estate, but the Florida statutes also provide guidelines on how much they are to be paid. An executor isn’t expected to donate their time, but they should keep an accurate accounting of their work and the time involved.

How Much Does an Executor Get Paid in Florida?

Florida Statutes Chapter 733.6171 lays out attorneys’ fees based on the size of the estate.

This fee schedule is for ordinary work done by an attorney. If the will is contested or other complications arise, the attorney may charge a higher amount.

How Long Does Probate Take in Florida?

Probate isn’t a quick process. It can vary on how long the entire process lasts, depending on the size of the estate, how long it takes to locate and inventory all the assets, and if there are any disputes. A general rule of thumb is to expect probate in Florida to take between six months and a year but be prepared that it may take much longer.

Do All Estates Have to Go Through Probate in Florida?

Most estates must go through probate in Florida unless they are in a living trust or have a payable or transfer upon death attached or have a named beneficiary. However, there are two types of probate in Florida. They are known as formal administration and summary administration.

A third option exists called Disposition of Personal Property without Administration, but it exists in limited situations. This option can only be used when no real property is involved, and the assets are exempt from creditors or are less than final expenses.

The summary administration may be used if assets equal no more than $75,000 or the death happened over two years before.

Does a Will Have to Be Probated in Florida?

Anyone who has possession of a will must file it with the county court after the person dies, according to Florida law. It doesn’t matter whether the estate will need to go through probate. The will must still be validated by the court.

Settling an Estate in Florida

Settling an estate in Florida is much like in any other state. However, you should pay attention to deadlines and other requirements that may be specific to Florida.

How Long Do You Have to File Probate After Death in Florida?

The first step in the process, which is filing the will with the court, must be done within ten days of the death of the person. If probate is required, the court will need to validate the will to determine how the assets are to be distributed.

Probate Court in Florida

Florida has its own probate code, which is found in the Florida Statutes, chapters 731 through 735. The rules which are followed for the proceedings of probate are located in Part I and Part II of the Florida Probate Rules. While the probate process is similar in all states, it is important to know the deadlines and detailed guidelines for Florida.

Man reviewing probate code documentation

Probate Code in Florida

Florida has its own probate code, which is found in the Florida Statutes, chapters 731 through 735. The rules which are followed for the proceedings of probate are located in Part I and Part II of the Florida Probate Rules. While the probate process is similar in all states, it is important to know the deadlines and detailed guidelines for Florida.

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