FLORIDA ATTORNEY EXPLAINS PROBATE AND TRUST ADMINISTRATION IN SIMPLE TERMS
How long does it take to administer a probate estate or trust? The answer depends largely on the value of a person's estate and the type of property he or she owned. Very small estates can sometimes be fully probated with filing one court document. Others will take longer, as much as several years if the estate is very large, has complex assets, or controversies come up during estate administration.
Does my attorney need to be in the same county as the decedent? - No, the probate attorney usually does not have to be in the same County as the decedent's residence. A Florida attorney can handle cases in any county of the state, as probate documents can all be handled via mail. However, there is some litigation, or will contest cases, that may require the attorney to be present for court hearings. In these cases it would be best to hire a lawyer local to that county.
Attorney Fees-Lawyer Jay Fleisher follows the guidelines of Florida law to determine his fees. At the first meeting with the client, fees are thoroughly discussed so that the client understands exactly what attorney's fees are involved. In most cases, fees are determined as a percentage of the assets in a person's estate or trust. In some instances, extra legal work is required. These charges are also explained. The first meeting is free. Please see Mr. Fleisher's fee schedule for probate an trust administration.
Four phases: Administration of a person's probate estate or living trust after they have passed on can be broken down into four basic phases. Palm Beach Gardens attorney Jay Fleisher can assist you with all the legal aspects of each of these phases.
First Phase
The first phase consists of the court appointing a personal representative of a probate estate or a successor trustee of a living trust agreeing to serve as such; notifying beneficiaries that they were mentioned in the deceased person's will or living trust; notifying creditors and other persons legally required to learn of the deceased person's probate estate or living trust, such as certain government agencies.
Ancillary Proceedings—Estate probate in Florida of assets owned by an out-of-state person.
Bond—The personal representative of a probate estate—and in certain instances the successor trustee of a living trust—must obtain a bond roughly equaling the value of the probate estate or trust, to guarantee proper performance of their duties unless the deceased person's will or trust provides that a bond is not required, or all of the estate or trust beneficiaries agree no bond is necessary.
Determination of Heirs—A court action determining to whom the deceased person has actually left his or her assets.
Disposition Without Administration—A simplified court proceeding to probate a small estate that is under a certain dollar amount.
Duties of Personal Representatives and Trustees—The actions a personal representative or trustee is legally required to take in that capacity.
Formal Probate Administration—A more complex proceeding that must occur if a probate estate is valued over a certain dollar limit, or contains certain types of assets.
Initial Procedures After Death—The things that must be done immediately after a person dies.
Intestacy Proceedings—Probate proceeding for a person who died without having signed a will or created a trust.
Personal Representative—The person appointed by the probate court to administer a deceased person's estate. Previously in Florida a personal representative had been called an executor or executrix.
Presumed Dead Person's Estate—A probate proceedings unique to those persons whose body has not been found and who are presumed to have died after a certain amount of time.
Summary Administration—An abbreviated probate administration of a deceased person's estate that is valued under a certain dollar amount.
Temporary Administrator—A person appointed by the probate court to administer a deceased person's probate estate until a personal representative can be appointed.
Testamentary Trust—A trust that is provided in a person's will. Testamentary trusts do not come into being until after the person has died.
Second Phase
The second phase involves gathering all of the deceased person's assets and preserving them; determining what debts the deceased person owed and paying them; dealing with claims for money that other persons think they are entitled to from the probate estate or trust; and filing income tax returns and estate tax returns for the probate estate or trust.
Beneficiaries' Rights—Assets beneficiaries are legally entitled to, from estate and trust administration.
Claims Against the Estate—Demands made by third parties for money to be paid to them from the probate estate or trust.
Construction of Wills or Trusts—Court proceedings to determine the meaning of an ambiguous portion of a will or trust.
Collection and Management of Estate Assets—The legal duties of a personal representative or trustee in regard to all assets owned by the deceased person.
Contesting Validity of Will or Trust—A court proceeding to render a will or trust null and void.
Federal Estate Tax—Taxes imposed by the federal government on assets that pass from the deceased to their heirs.
Homestead—Property protected so that creditors cannot get to it to satisfy a debt of the deceased person.
Income Tax Returns—Tax returns that must be filed for the partial year after someone dies and the probate estate or trust must file if the deceased person's estate or trust earns income.
Inventory of Estate—In a trust or probate estate, a list of all assets owned by the deceased person and their value on the person's date of death.
Removal of Personal Representative—Probate court proceedings to force a personal representative to step down as administrator of a probate estate.
Sale of Estate Property—The steps that a personal representative of a probate estate or trustee of a trust must take to sell the deceased person's assets.
Third Phase
The third phase consists of preparing an accounting of assets, expenses, and fees for each beneficiary of an estate or trust to show how each share was calculated; determining the amount of cash or assets beneficiaries of an estate or trust are to receive; paying the fees of the personal representative or trustee and their attorneys; and distributing to the beneficiaries their share of the probate estate or living trust.
Accountings—Schedules of all assets, income, and expenses required in probate and trusts.
Attorney Fees—The amount an attorney customarily charges to assist in probate and trust administration.
Charitable Bequests—Gifts made to charities from a probate estate or trust.
Contracts to Bequeath Property—Agreements made before death by the deceased person to leave assets under their will or trust to someone.
Exempt Property—property that the surviving spouse, or if none survives their children, receive that does not 'count" as part of the probate estate that the spouse or children would otherwise receive under a person's will, or if the person dies intestate.
Family Allowance—An amount determined by the court in probate proceedings to be paid during the probate administration to the deceased person's family, regardless of what the will provides.
Personal Representative Fees—The amount customarily paid to the personal representative from the probate estate assets to compensate him or her for work done on behalf of a probate estate.
Restrictions on Disposition—Restrictions made by the deceased person or required by law, on how a particular asset can pass to a person from a probate estate or trust.
Spouse's Elective Share—The assets a surviving spouse can legally receive from an estate or trust if, under the deceased person's will or trust, the spouse was left a lower dollar amount than expected.
Fourth Phase
The fourth and final phase consist of obtaining required approvals from the appropriate courts and federal and/or state agencies, paying final fees or costs of administration, and filing the required documents with the court in the case of a probate estate.
Reserve--a small amount of cash held in the estate until just before closing it to pay last minute expenses. The reserve, after any expenses, is then distributed to the beneficiaries.
Closing the Estate and Discharge of Personal Representative—Steps taken to finish the administration of a probate estate.