As estate planning attorneys, we use the word “probate” so often that we lose sight of the fact that the concept is not so familiar to the uninitiated. Indeed, in our last article, we discussed avoiding “digital probate.” In the following article, not only will we define the term, but we will explain the nuances of the process in Florida.
What is Probate?
“Probate” comes from the same Latin verb as “prove” and “probative.” Indeed, probate literally means “something proved,” and for our purposes that “something” is a will. So, in a sense, probate is the process of “proving” a will to the court’s satisfaction. Florida has very specific rules as to how someone goes about proving a will. Following these rules is critical, because without probate, a will is only worth the paper it’s written on.
One of the leading Florida Supreme Court cases on the subject notes that until a will is admitted to probate, it is ineffective to prove title to or the right to possession of the property of a decedent. Stated another way, even if uncle Bill left you the farm in his will, until that will passes through probate, you have no rights or interest in the farm. The courts have interpreted this common law doctrine as meaning that an individual has no vested interest in the estate of a decedent (legal or equitable) simply because that person was provided for in the decedent’s will.
In another sense, then, probate is the official legal process through which title to a piece of property is transferred from a decedent to a beneficiary. The probate process ensures that all persons with rights to the property (including potential creditors) receive due process of law, and it ensures that the wishes of the decedent are followed as closely as possible.
Opening a Formal Probate Estate
To open a probate estate in Florida, any interested individual may file a “Petition for Administration” with the probate court. (We discussed below when this petition is sometimes unnecessary.) The petition must be signed under oath by the petitioner, and it must identify the petitioner, the decedent, and any beneficiaries. The petition must also describe the assets of the estate and named the personal representative that was appointed in the will. In general, an original copy of the will and the death certificate must be deposited with the court. There are methods for authenticating a copy of the will, if the original can’t be found. There are also methods for establishing a lost will, and will deal with these in a later article.
The Personal Representative
In general, the individual nominated by the decedent and the will to service his or her executor (known as a “personal representative” in Florida) has the right of first refusal to serve in that role. An interested person may object and argue that the personal representative nominated in the will is unfit to serve. Absent any objection, the person nominated by the decedent may file the Petition for Administration without notice to any interested persons or beneficiaries.
If the petitioner is not nominated, before the representation of the estate becomes official, “formal notice” must be served on anyone else the petitioner knows to be qualified to serve as personal representative or who might have preference in serving. In general, formal notice requires service by sending a copy of the petition to the interested person or the attorney representing the interested person by certified mail or another commercial service that requires a return receipt.
It should be noted that even if nominated in the decedent’s will, a person may be ineligible to serve as the personal representative if they fail certain threshold qualifying criteria (e.g., if the person is a convicted felon or not a resident of Florida and not related to the decedent within a certain degree).
Admission of Will to Probate
After the petition is filed, if there are no objections, the will is “admitted” to probate. This simply means that the probate court accepts the will as the official last will and testament of the decedent (pending any future objections). The probate court will then appoint the personal representative for the estate. Although a bond may be required by the court, this is usually waived in the will and may be waived by petition. The personal representative must designate a resident agent (not to be confused with a “registered agent”). The “resident agent” is simply someone who resides in the state who can accept service on behalf of the personal representative.
Proof of Will
“Self-proved” wills executed in accordance with the Florida Probate Code may be admitted to probate without further proof. A self-proved will is one that contains a “self-proving” affidavit, which is an affidavit of the witnesses to the testator’s proper execution of the will. Absent a self-proved will, further proof of the will is required, including an oath of an attesting witness before local judge or commissioner. If a witness cannot be located or cannot testify (through incapacity), the personal representative or any other person having no interest in the estate may take an oath that the will is believed to be the true last will of the decedent. A will written in a foreign language must be accompanied by a true and complete English translation.
Authenticated Copy of Will
As a general rule, the decedent’s original will must be offered for probate after their death. If a decedent’s original will cannot be located, there arises a presumption that the decedent destroyed their will with the intent to revoke. Nonetheless, there are means and circumstances that may allow an authenticated copy of a will to be admitted to probate in Florida if the original could have been admitted to probate.
Letters of Administration
Once the will is admitted to probate and the oath and designation of the resident agent is filed, the probate court will issue “Letters of Administration,” which are the official documents that give the personal representative the authority to act as the estate’s legal representative. Thus, if a personal representative needs to transfer a bank account from the decedent to the estate, the personal representative may present the bank with a copy of the letters to prove his or her authority.
The Notice of Administration
After letters have been issued, the personal representative must serve by formal notice a copy of the “Notice of Administration” to the surviving spouse, the beneficiaries, any person who may be entitled to exempt property, and if there is a trust, to the trustee and any beneficiaries. Creditors do not need to be formally served, because they will be put on notice through a “Notice to Creditors” (which we discussed below).The notice of administration provides information to the interested persons regarding the nature of the administration of the estate in includes things like the name of the decedent, the court information where the probate proceeding is pending, the contact information for the personal representative, and the date of any wills and codicils. If anyone who receives the notice of administration asks (in writing) for a copy of the will and codicils admitted to probate, the personal representative must provide them, as well as any new wills and codicils that are subsequently admitted to probate.
Notice to Creditors
The final critical step two opening a probate estate is the publication of the “Notice to Creditors.” In Florida, creditors’ claims are time-barred after two years subsequent to the decedent’s date of death. Within this two-year window, the personal representative must file a notice to creditors and publish it in the local paper once a week for two consecutive weeks.
After publication, the personal representative will then file a “proof of publication” with the probate court within forty-five days. If a creditor is “reasonably ascertainable,” the personal representative must informally serve particular notice on such creditor. If the decedent is fifty-five years or older, service must be given to the Agency for Health Care Administration. If a creditor files a proof of claim in the estate, or if a creditor’s claim has already been paid, the personal representative need not give that creditor notice.
Probate Without Administration
Formal probate administration is not always necessary, depending upon the property that the decedent leaves behind. If a decedent leaves only personal property exempt from the claims of creditors under the Constitution of Florida or under Florida statutes, and nonexempt personal property (the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness), no formal administration is required.
A Petition Without Administration must be verified by the petitioner by affidavit or otherwise, and must contain certain similar statements to a Petition for Administration. Objections may be made by any interested person to the petition. An order admitting the will to probate without administration will include a finding by the court that the will has been executed as required by law.
Probate without administration may also be used in cases of income tax refunds, when a probate is otherwise unnecessary. If the IRS determines that an overpayment of federal income tax exists and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded, and irrespective of whether the decedent had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of $2,500, may be refunded to the estate. If a refund is made to the surviving spouse or designated child pursuant to the verified application, the refund shall operate as a complete discharge to the IRS from liability from any action, claim, or demand by any beneficiary of the decedent or other person.
Opening a probate estate in Florida is not without a certain degree of complexity. We hope that this primer has provided a bit of clarity to the process. Although we have provided a detailed outline of the procedures, there are nuances that require very strict attention. The failure of a personal representative and his or her attorney to follow the letter of the law may result in unfortunate and unintended consequences, such as otherwise avoidable litigation and costs.