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Frequently Asked Questions About Probate
Probate is a legal process where a person's final
debts are paid and the remaining assets are distributed to the beneficiaries
named in the will or named in the intestacy statute if the person
has no will. The will of the decedent (i.e., the person who
has passed away) is filed with the court in the county where the
person resided prior to his or her death. A personal representative
(a/k/a executor) is appointed and has the responsibility of inventorying
the assets, and notifying the creditors of the death. Notices are
mailed to known creditors and a public notice is published in the
newspaper. The creditors have ninety (90) days to file claims for
payment. The claims of creditors may be cut-off if not filed within
ninety (90) days. Assets are either sold or distributed to the beneficiaries
depending on the decedent's wishes and the needs of the estate.
Of course, it can be more involved than this sounds, but these are
the basics. Probate takes at least ninety (90) days because
that is the minimum amount of time for the creditors to be notified
and to file claims for payment. Some time must also be allowed for
preparation of the paperwork and to send it back and forth. It may
take much longer if a business is involved, if there are lawsuits,
or if there are assets that take time to sell. So, the answer is
- from ninety (90) to one-hundred-twenty (120) days to a year or
more depending on circumstances. The personal representative is entitled to a fee
of three percent (3%) of the assets. If there are two personal representatives,
they are each entitled to a fee of three percent (3%) of the assets
for a total of six percent (6%). The personal representative must
have an attorney. A presumed reasonable fee for the attorney is
$1,500.00 for small estates to three percent (3%) for estates above
$100,000.00. The percentage declines for larger estates. The attorney
may also be entitled to additional compensation for some extra services
or for extenuating circumstances. These percentages may be subject
to negotiation. WILL MY WILL, ASSETS, AND DEBTS BE MADE PUBLIC? Anyone who wants to go down to the Courthouse and
examine the file may read the will. They may also be able to get
a copy mailed to them. There is no list of assets in your will.
The will is usually very general. The inventory of assets is sealed
and cannot be viewed by people who ask to see the file. However,
beneficiaries and other "interested persons" may receive
copies of the inventory so quite a few copies of the inventory may
be available. The claims of creditors may also be available to anyone
who asks to see the court file. WHAT IF I OWN PROPERTY IN ANOTHER STATE? If you die as a resident of Florida and own property,
especially real estate, in another state, you will have to have
another probate proceeding called an "ancillary proceeding"
in the other state to transfer the title to the property to your
beneficiaries. This is because a Florida court does not have jurisdiction
over property in another state.
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The hiring of a lawyer is an important decision that should not be based solely on advertisement. Before you decide, ask Harry T. Hackney to send you free written information about his qualifications and experience. The purpose of this Web site is to provide general information in the fields of law represented. Each situation is unique and the facts will vary with individual circumstances. Information contained on this site is not offered as legal advice, and is based primarily on the law of the State of Florida. |
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