Estate Administration And The Probate Process
Probate is not the scary thing that many people describe. It is, however, slow. With proper representation, it should move reasonably efficiently unless there is infighting or there are tax problems. Estates in Florida are not subject to federal estate tax unless they are valued at over $11 million (as of 2018), and that figure is going up each year. There are other tax returns that will need to be filed as things progress: the decedent’s last income tax return and income returns for the estate itself, as it generates income from assets that once belonged to the decedent.
If there is no will, the assets in the estate pass by intestate succession. The surviving spouse may serve as personal representative (the person who handles the business of the estate) if he or she chooses and is qualified. If not, the heirs decide who should serve as personal representative based upon their relative shares. Generally, that is the person who will receive most from the estate.
If there is a will, then the person nominated to serve under the will is appointed unless there is some reason they do not qualify. That person is required to secure the decedent’s property, protect it, pay valid creditor claims and distribute the property according to the will or the intestate succession statute. The personal representative (also known as the executor) is a fiduciary. A fiduciary has the duty to deal fairly with others with an interest in the matter and put the beneficiaries’ interests ahead of his or her own.
Property Of The Estate
Any property that is jointly owned with a spouse (unless there is a prenuptial agreement) becomes the property of the surviving spouse and is not subject to probate. Any property held with another person with rights of survivorship becomes that person’s property unless it is shown that the person was only entrusted with (for instance) a bank account in order to pay bills of the decedent during his or her lifetime.
The will may or may not say how the person would like the remains handled. If there is a spouse or adult child, that person generally makes the decision in the absence of a will, but if none of these are available, it is up to the personal representative.
The Attorney For The Personal Representative
In Florida, a personal representative must be represented by an attorney in his or her representative capacity. The attorney files the paperwork to have the will admitted to probate, to have the personal representative appointed and assists in obtaining a bond if any is required. The personal representative then publishes a notice to creditors. Please do not pay any of the creditors until the time period has run for all to file.
If the amount of debt results in insolvency there is an order and method by which the assets are divided among creditors. If you get it wrong and pay someone that did not have priority you could incur personal responsibility. Even if the estate does become insolvent you are entitled to a fee for your service and that is a top-priority claim. Keep track of your mileage and expenses; you are entitled to reimbursement for these in addition to your fee.
Creditors And Taxes
Once the creditors and taxes have been paid, you must file an accounting reflecting how you spent money and where the income came from. Finally, the assets are distributed. Often, one or more assets must be sold to divide the proceeds. Once you have completed your work, the court signs an order releasing you from further responsibility.
At Julie Glocker Pierce, LLC, I help guide you through this process. I handle most of the process and will even manage the bank account if that is what you would like to have done. I work to keep you informed at every step in the process. I also help you keep the other beneficiaries informed. And if there are disgruntled beneficiaries, I can help you manage that as well.