In some cases, the probate process in Florida can take as little as six months, but that is not the typical case. It usually takes anywhere from half a year to eighteen months, and complicated cases may take as long as two years or more. However, having an idea of how long a case may take helps you tailor your expectations of the probate process, your attorney, and the courts.
Stages of the Florida Probate Process
In the simplest cases, those in which there are no difficult creditor claims, disputes over ownership of assets, or arguments against a will, probate often goes smoothly. It occurs in seven phases, and if there are no complications that require additional phases, the system proceeds as follows.
- Locating a Will: In some cases, the decedent’s attorney has the individual’s Will, and a simple call to let them know the person has passed away gets the process started. However, if the individual’s loved ones are unsure of who prepared the Will, they may need to search the person’s home or safe deposit box at their local bank for the document. It is important to note that although many individuals place Wills in safe deposit boxes, best practices dictate against this as doing so usually requires a court order to open the box.
- Obtaining a Death Certificate: Any organization that will be involved in the probate process will require a death certificate (and in some cases, an original death certificate). This definitely includes the Court and may include life insurance companies, brokerage firms, and banks.
- Opening the Probate Case: Probate administration requires filing a petition for probate, which usually includes the death certificate and the original Will (if the decedent died intestate). When there is a known will, the court will appoint the individual named by the decedent as the personal representative of the Will, if that person qualifies under the statute. If there is no Will, the judge will follow the Florida Statute which has a preference in appointment list. You can find that here.
- Marshaling Assets: Sometimes identifying an individual’s assets takes months to complete. It may even require waiting until the following year to get annual statements from all of the companies where the person held accounts. In some cases, professional appraisals are necessary to assess the value of belongings. NOTE: If the heirs are choosing to inherit the property as opposed to selling and taking the case, it’s a smart choice to get the properties appraised with a date of death value so they can establish their basis in the asses. This will be useful if and when the heirs decide to sell the property in the future.
- Paying Debts: One of the Personal Representative’s duties is to gather the individual’s remaining bills, including any end-of-life medical expenses, credit cards, funeral expenses, utilities, etc., ensure they are valid and pay them off. It may also be necessary to file the individual’s estate tax return and final income tax return and we always recommend working with a trusted CPA to handle final tax issues.
- Distributing Assets to Beneficiaries: Once all assets are mashaled and liquidated and debts are paid, the Personal Representative must distribute whatever assets are left to the Decedent’s legal heirs. If the individual had a Will, the heirs designated in the Will should receive the percentage stated therein. However, in cases where there is no Will (which is more common, unfortunately), the remaining assets will be distributed according to the state’s intestacy laws.
- Closing the Estate: To finalize the probate administration, the court must receive notice that all beneficiaries received their distribution, approve an accounting of the estate (unless waived by the beneficiaries) and discharge the personal representative. Once the necessary tasks are completed, the probate court will close the individual’s file.
Why Does Probate Take So Long?
It is time-consuming because the Personal Representative must be meticulous in examining all bank statements, tax returns, and other documents to ensure the decedent’s assets are properly accounted for. This tedious process involves a great deal of paperwork and careful adherence to deadlines. It is usually wise (and necessary per Florida Probate Rules) for the Personal Representative to seek the counsel of an experienced Probate attorney to help them complete their duties and avoid any delays.
What Factors Can Delay Probate Administration?
The probate process in Florida may be delayed due to any of the following circumstances:
Beneficiaries Everywhere: In some cases, the duties involved in locating documents and handling the Decedent’s outstanding debts go smoothly, only to be complicated later by the number of beneficiaries the individual left assets to. Communication with various individuals, especially when they are not local to the area, can slow the process down.
Additionally, when there are more beneficiaries, there is a greater likelihood that someone will dispute the will or the way the estate is being administered. When one of the beneficiaries decides to hire their own attorney to monitor probate administration, it further slows the process. If their attorney finds anything they feel is wrong, they may file a motion requiring the court’s approval before the process may go on.
Will Contests: Any beneficiary has the right to contest a will.. To win such a case, the person must prove the Decedent was either coerced into signing the will or that they were not of sound mind when they signed. When a will is contested, it usually creates a major delay (think years).
Intestacy Issues: If there is no will when a person passes away, the first step is for an individual to petition the court to appoint them as Personal Representative. If more than one person wishes to be the Personal Representative, the court will review their qualifications and decide. Sometimes the Court cannot decide between two or more individuals and will appoint a Curator (usually an attorney licensed in the Statute of Florida and experienced in Probate) to handle the estate.
After a Personal Representative is in place, all debts must be paid before the remaining assets can be distributed. Then, distribution can take place. Since there was no Will naming heirs, the distribution will go to those the statute designates as Intestate heirs. This can take longer if:
- The heirs are unknown.
- The location of the heirs are unknown.
- The heirs are overseas.
- Heirs have died and locating children of heirs must happen.
Uncle Sam: When a person’s estate owes taxes (especially nonresident Decedents), the Personal Representative must file paperwork with the IRS and then wait for a response before moving on. Sometimes the wait for a response from the IRS can take years (especially after Covid).
Complicated Assets: Sometimes the very assets an individual leaves behind can complicate the probate process. For instance, if the person died owning a business, the business debts must be paid, receivables collected, and the business either transferred to a willing beneficiary or sold. This may involve the hiring of a CPA experienced in business valuations to ascertain the value of the business.
A Skilled Probate Attorney Can Make Things Easier
The loss of a loved one is hard for most individuals to bear, and settling their estate can often lead to extreme anxiety. The compassionate legal professionals at Irama Valdes, P.A. can help to ease this burden and help the family through difficult and confusing times. Contact Irama Valdes, P.A. if you need a skilled probate attorney.