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What is a Formal Probate?

In a nutshell a formal probate administration is a court supervised distribution of assets to heirs and the payment of valid claims to creditors. Formal probate administrations are required when the decedent has been dead for less than two years and the value of their probate assets exceed $75,000.

A decedent’s probate estate consists of everything in which the decedent had an ownership interest in his/her name alone.

What are the Steps in a Formal Probate Administration?

The formal probate process involves the filing of a petition for administration which seeks the appointment of a personal representative. The duties and powers of the personal representative are set forth in in Florida statutes, as are formulas for compensation for the personal representative and their attorney.

Once appointed by a Probate Judge, the appointed personal representative might have to post a bond, or the court can require a restricted depository in lieu of a bond. A restricted depository is a bank account from which no withdrawals can be made without a court order. 

Creditors must be notified and given an opportunity to present their claims to the personal representative. This is done by publishing a Notice to Creditors once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.

The assets of the probate estate are then marshalled and accounted for by filing an Inventory with the court within 60 days of the appointment of the personal representative. 

Once the assets have been collected and the creditors have been satisfied, then the personal representative must account to the beneficiaries for the period of the probate administration and distribute the assets to them. Upon successful completion of administration, the personal representative is discharged from any further duties and liabilities.

What Assets and Debts are included in a Formal Probate Administration?

Jointly-owned property is not a probate asset nor is property with a named beneficiary (ex. Life insurance or retirement accounts). Also, assets held in a revocable or living trust do not pass through probate.

In the simplest terms, only those assets owned by a decedent in his or her individual name require probate. Assets owned jointly as “tenants by the entirety” with a spouse, or “with rights of survivorship” with a spouse or any other person will pass to the surviving owner without probate.

This is also true for assets with designated beneficiaries, such as life insurance, retirement accounts, annuities, and bank accounts and investments designated as “pay on death” or “in trust for” a named beneficiary.

Examples of Probate Assets include: real estate, stocks, bonds, boats, cars, artwork, guns, jewelry, as well as other property like furniture, clothing, home furnishings, digital assets and items included in a safety deposit box.

Examples of Debts include: mortgages, credit card balances, car loans or leases.

How long does a Formal Probate Administration Take to Complete?

For those Probate estates not required to file a federal estate tax return, the final documents to close a probate are due within 12 months of the opening of the estate by the Court.

An estate is opened upon the issuance of letters of administration by the Court.  However, probates that do not file a federal estate tax return and that do not involve any lawsuits, often close within six months.

For those estates required to file a federal estate tax return, Form 706, which is due nine months after the death, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due.

This date is usually extended by the court because often the IRS’ review and acceptance of the estate tax return are not completed within that period.

Florida lawyer Larry Schott has been assisting clients with the probate process for more than 32 years. He is dedicated to successfully resolving all issues and answering all questions that arise throughout the probate process.

Larry will do everything he can to help you and your family through this difficult time, and Larry’s clients know that they will deal personally with Larry and not some member of the firm’s support staff or a probate paralegal.

Larry represents clients in all Florida probate matters including:

To learn more about Larry and his qualifications, click on this link: Broward County Probate Attorney.

Do You Have a Question?

If you have a question about a Florida Probate issue, then feel free to give Larry Schott a call for a free consultation.

Please fill out the “Contact Us” form to ask a question or you can call us at 954-880-1302.  We promise to get back to you promptly.  Ask now.

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