Florida Elder Law & Estate Planning Blog

Common Misconceptions About Florida Probate

You may have heard friends, relatives and neighbors talk about the Florida probate process. Chances are, not everything you’ve heard is accurate. Whether you are working with an attorney to create your estate plan or are responsible for handling the estate of someone who has passed away, knowing the facts will help smooth the way forward. In this post we clarify some of the most common misconceptions about probate and give you the facts.

Before we begin, let’s define probate. In a nutshell, it is the court process in which (1) the decedent’s assets are passed from the decedent to his/her heirs; and (2) creditors of the estate are notified and paid from the decedent’s estate.

Now for those myths:

1. All my assets must go through probate when I pass away.

No. Not all assets have to go through probate. Probatable assets are only those that are owned by you and do not have a designated death beneficiary or co-owner.

2. If I have a will, my estate does not go through probate.

No. Your will must be filed with the Probate Court.

3. If I don’t have a will, my estate does not go through probate.

No. Your probatable assets (those in your name, not beneficiary-designated or co-owned) will go through the probate process. Without a will to provide a roadmap of your wishes, your assets will be distributed according to Florida’s intestacy laws.

4. If I pass away without a will, the Probate Court gives everything I have to the state.

No. If you pass away without a will, the Probate Court distributes your assets according to Florida intestacy statutes. If there is no surviving spouse or children, more distant relatives are in line for distributions. You can read the intestacy rules here.   The estate goes to (escheats) to the state only if no relatives can be found. This rarely happens.

5. My agent under my power of attorney can deal with the Probate Court.

No. Your agent under your durable power of attorney can act on your behalf, using the powers you have given him under the circumstances you have specified, while you are alive. Your agent’s authority ends when you pass away. Your power of attorney has no relevance with regard to the Probate Court.

6. If my estate is not taxable, it does not have to go to probate.

No. Whether your estate is subject to federal estate tax is unrelated to whether it is probated. Some estates that pass through probate may be taxable, others not. (The current federal estate tax is levied on estates over $11.7 million. Florida has no estate tax.)

7. The Probate Court must accept whomever I have named as my personal representative (executor).

No. Florida has rules regarding the individuals who may serve as Personal Representative. If your nominee does not qualify under those rules, the court may reject him/her and name someone else. For example, under Florida law, a close family member may be your Personal Representative, regardless of whether that individual lives in Florida. But if you appoint a non-relative, such as a  friend, the individual must reside in Florida. Your personal representative must not have been convicted of a felony, and must be age 18 or older.

8. My personal representative under my will has immediate authority to start distributing assets.

No. The court must approve your choice of personal representative and must issue “letters of administration” that authorize him/her to act on behalf of your estate. Even then, your personal representative cannot begin distributing your assets to your beneficiaries without first accomplishing other tasks, such as furnishing a list of your assets, notifying and paying creditors, etc.

9. The Probate Court erases my debts when I pass away.

No. On the contrary. One of the purposes of probate is to ensure that creditors are paid. Your personal representative will have to demonstrate to the court that efforts have been made to notify creditors so that they have the opportunity to file a claim against the estate.

10. The Probate Court can order the sale of my home to satisfy creditors.

No. Homestead property has significant protections under Florida law if you leave your home to certain constitutional heirs at law – for example, spouse, children and certain other relatives. Nevertheless, your home is vulnerable to creditors whose claims are secured by your home. Examples include the mortgage lender, your homeowners/condo association, and property tax bills. 

11. The lawyer who wrote my will is the one who must help with the probate.

No. Your personal representative may use the original lawyer, and this is often what happens. However, your personal representative is not obligated to retain that attorney for the probate process.

12. Probate takes years to be settled, and my beneficiaries won’t get anything for a long time.

No, with some qualifications. Many estates can be settled in months. It can take longer for larger estates, or if complications arise. Complications may include challenges to the estate by those not happy with their distributions or those you have disinherited entirely; disagreements among beneficiaries; the need to sell real estate; difficulty with the title to property; problems locating beneficiaries; addressing creditor claims; whether estate tax is due, etc. If the estate is small and certain other conditions are met, a quicker probate process called Summary Administration may be available. Your probate attorney will advise you on this point. 

13. My personal representative does not need to retain a probate attorney to settle my affairs.

No. Except in the simplest cases, an attorney is necessary. The Florida Bar consumer pamphlet on probate says as follows: “A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.”

14. The probate attorney represents my beneficiaries.

No. The probate attorney does not represent, or advocate for, beneficiaries. The attorney’s job is to advise the personal representative to follow through on the terms of the will. The attorney represents your estate.

15. My personal representative must be present at the Probate Court to handle things.

No. Most of the personal representative’s job can be done remotely. In any event, the probate attorney who is retained to represent the estate will be able to handle most matters on the personal representative’s behalf, in person if necessary.

16. Every good estate plan should be structured to avoid probate.

No. Understandably, many people structure their estate plan so that their families need not deal with the hassles and expense of probate. A properly drafted and funded revocable living trust can eliminate probate. That said, there are certain circumstances when probate is an appropriate choice. For example, you may actually want the Probate Court “looking over the shoulder” of your personal representative to make sure things are done right, or if you anticipate squabbles among your beneficiaries.

Whether you are a personal representative who is representing an estate, or if you are drawing up your own estate plan, the lawyers of The Karp Law Firm can assist you. Call us at (561) 625-1100 or email us at klf@karplaw.com.