Florida Probate: Do I have to hire a Florida Probate Attorney? Is it required By Law?
Probate law in Florida requires you to retain a probate attorney licensed by the Florida bar to handle administration of an estate in almost all cases. Although some exceptions to this law exist, it is best for all involved parties if a Florida probate attorney is retained to handle legal matters, and to help with the execution of the Will and distribution of the estate.
What is Florida Probate Law?
When a person dies, probate helps ensure that the deceased's debts, loans, taxes, and other expenses are paid, and assists with the distribution of the assets that remain to beneficiaries listed in the deceased's Will. There are two types of court supervised probate administration, Formal Administration and Summary Administration, which both fall under the jurisdiction of the Florida Probate Law.
What is Formal Administration in Florida probate?
The most common type of probate administration in Florida is Formal Administration. Formal Administration of Florida probate cases is used when either a newly deceased person (died in the past two years) has distributable assets totaling more than $75,000, or when the individual requested this type of administration in their Will, despite when they died, or the amount of assets they retained after death.
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What is Summary Administration in Florida probate?
Just like it sounds, Summary Administration is a condensed version of the process for Florida probate. This type of administration can only be used in cases where the deceased meets two criteria: they have been deceased for more than two years, and their total liquid assets after death total less than $75,000.
Do I Have to Use Summary Administration if I Qualify For It?
Under Florida Probate Law, if you meet the criteria for Formal Administration, you must use that Florida probate process. However, the same is not true for Summary Administration. If you qualify for Summary Administration, you have the right to elect Formal Administration instead. A Florida probate attorney can help you decide whether Formal Administration or Summary Administration is appropriate for your probate case and assist you with all related paperwork.
Why Should I Use an Attorney for My Probate Case?
During the administration of an estate, the executor or personal representative of the Will is likely to have many questions about the legal process, timelines for completion, and paperwork. For Florida probate processes using the Formal Administration method, consultation with a probate attorney is required by Florida probate law because of the complex nature of the tasks and paperwork assigned to the executor of the estate. While those using Summary Administration are not required by law to seek the advice of a Florida probate attorney, it is highly advisable.
A Florida probate attorney can help ensure that the executor is completing tasks and properly administering the estate. A probate attorney is likely to help the executor—whether that is a bank, personal representative, or trust—by sending notices to creditors allowing them to file a claim; paying, negotiating, or rejecting creditor claims based on a complete assessment; collecting, managing, and preserving the estate's assets until final distribution; and, by paying any taxes owed by the deceased, such as leftover property taxes and income taxes.
In larger estates, there may be additional tasks for the executor which can be handled by a Florida probate attorney, such as filing and sending legal forms and documents.
Is There Any Way to Avoid the Florida Probate Process?
In most probate cases, the deceased did not leave behind a Will or any other means of distributing assets, which is why the law requires consult with a Florida probate attorney. However, an earlier noted exception to this law occurs when the estate's assets are funded by a trust with rights of revocation, which is not bound by probate law and is protected by privacy, whereas the proceedings of most probate processes are public record.
Although a revocable trust may provide a way to bypass probate, handling the estate of a deceased individual can be incredibly difficult, and the benefits of hiring a probate attorney to assist with the distribution of assets to the right persons outweigh the costs.