If you recently lost a loved one, you may find yourself directly involved with the probate of the decedent’s estate if you were named as the Executor in the decedent’s Last Will and Testament. You might also volunteer to be the Executor of the estate if the decedent dies intestate, or without leaving behind a valid Will. The term “Personal Representative” is used to refer to an Executor in Florida. If you have never served as a Personal Representative, you probably do not know where to begin the process of probating the estate. Probate is the legal process that is typically required to follow the death of an individual. As the Personal Representative, it is your job to oversee the probate of the estate. This can be a daunting prospect, particularly given the fact that you are likely still grieving the loss of your loved one as well. At Kulas & Crawford, we understand the challenges you are facing and would like to help. To get you started in your role as Personal Representative, we have prepared a Probate Checklist to be used as a reference. If you have specific questions or concerns, please do not hesitate to contact our office for assistance.
As the Personal Representative of the estate, there are a few steps you need to take prior to opening probate. Ideally, these steps will be taken immediately upon being notified of the decedent’s death.
- Determine if a Last Will and Testament was executed by the decedent. You will need an original copy of the Will if one exists. If you do not have one, ask family members or check with the decedent’s estate planning attorney.
- Obtain several certified copies of the decedent’s death certificate from the Florida Department of Health.
- Secure assets. Lock up real property, take possession of vehicles, etc.
- Close financial accounts. When possible, close or freeze all financial accounts.
- Locate additional estate planning documents. If the decedent had more than a basic estate plan, there will be additional estate planning documents that need to be located, such as:
- Life insurance policies
- Letters of Instruction
- Power of attorney
- Trust agreement
- Funeral planning contract
- Start creating lists of estate assets and debts. To make your job as the PR easier, include as much detail as possible with each entry, including things such as account numbers, passwords, current value, and location.
- Decide if the estate requires formal probate. Florida, like most states, offers an alternative to formal probate for small estates. To be certain the estate qualifies for small estate administration, consult with an estate planning attorney.
Once you have taken care of the immediate concerns faced by a PR, you need to open the probate of the estate. This is typically done in the county in which the decedent was a resident at the time of death.
- Categorize estate assets as probate or non-probate. Not all assets are required to go through probate. To make sure you leave out all non-probate assets, divide the estate assets into categories. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain jointly held property (if rights of survivorship attach)
- Assets held in an account designated as “Payable on death” or “Transfer on death”
- Assets held in some retirement or pension accounts
- Retain an estate planning attorney to help. At this point, most PRs are required to retain an experienced attorney to help with the probate process.
- Prepare documents to open probate. You will need to file a Petition for Administration and submit an original copy of the decedent’s Will.
- Seek official appointment as Personal Representative. Even if you were named as the Executor by the decedent, the court must officially appoint you.
- Notify creditors that probate is underway. This can be done in writing sent to known creditors but must also be done via publication in a local newspaper.
- Identify legal heirs of the estate. If the estate is an intestate estate, the legal heirs of the decedent will inherit the estate assets, making it imperative that they be identified and located.
After Probate Is Underway
Once the probate of the estate is in full swing, your job as the PR may slow down some; however, you will still need to stay on top of the probate process and continue to fulfill your duties which may include:
- Review creditor claims. As the PR, you are required to review every claim submitted and approve or deny it. Approved claims are paid out of available estate assets according to priority.
- Litigate challenges if necessary. If someone challenges the validity of the Will submitted to probate, you must defend that Will because you are the PR. A Will contest really requires the assistance of an experienced attorney to help.
- Prepare all applicable tax returns and pay any taxes due. All estates are potentially subject to federal gift and estate taxes. Fortunately, Florida residents are not subject to a state level estate tax as well.
Winding up Probate
At the end of the probate process, there are a couple of steps you need to take to make sure the probate of the estate is properly terminated.
- Submit a final inventory to the court.
- Prepare any legal documents necessary to effectuate the legal transfer of the remaining estate assets to the intended beneficiaries and/or heirs of the estate.
For more information, or if you have specific questions or concerns regarding the probate of an estate, contact the experienced Florida estate planning attorneys at Kulas & Crawford by calling (772) 398-0720 to schedule an appointment.