What Is An Open Estate?

In my more than 30 years as a practicing attorney in Florida, I’ve answered a lot of questions from my clients in different areas of the law. Answering questions for people is actually an important part of my job. I enjoy speaking with people and helping them alleviate their problems. One of my primary reasons for attending law school, passing the bar, and practicing law is so that I could obtain the expertise required to answer my clients’ questions.

One of the questions I’ve been frequently asked over the years is, “what is an open estate?” The question that generally follows is, “why is opening an estate necessary?” In this comprehensive guide, I’ll walk you through everything you need to know about opening an estate, the probate process in Florida, and how you may be able to avoid probate altogether.

What Is an Open Estate?

When a person dies, the deceased person’s outstanding liabilities need to be paid and their assets distributed to the correct individuals according to the provisions set forth in their will or by statute if they have passed away without a will.

If the deceased person doesn’t leave behind a will, or even if they do, a probate action needs to be filed with the court in the county in which the deceased person lived. The will in question may or may not have been prepared in the State of Florida. Only probate assets in the estate are involved in this legal process, meaning those in the deceased’s name only at the time of their death.

What Is Probate?

Probate is the court-supervised procedure by which someone who dies can get the property they leave behind at the time of death to their designated beneficiaries. It is simply the legal process where a deceased individual’s will is proven in court as a valid and legal-binding document. This is the first step of administering an estate.

During probate, the court finds the will to be a true and correct document executed by the deceased. When it is deemed valid, the personal representative will receive letters of administration from the probate court, which authorize the person appointed as Personal Representative of the estate to act on behalf of the decedent’s estate. During this time, any debts are settled, and any property is transferred to heirs or beneficiaries mentioned in the estate planning documents.

Florida Probate Code says that all wills must be probated.

What Are the Two Types of Probate?

In Florida, there are two types of probate:

1. Summary Administration

The streamlined process which is allowed for estates with assets of less than $75,000 or in the case of a person who has been deceased for greater than two years. The fee for filing a Summary Administration action is $350.00.

2. Formal Administration

Applies to estates wherein the total assets are more than $75,000. This is, of course, more protracted and time-consuming than Summary Administration. The fee for filing a Formal Administration action is $400.00.

The Four Steps of the Florida Probate Process

Our probate attorney, Gary I. Handin, understands the probate process in the State of Florida and can help his clients throughout the process. The four main steps of the Florida probate legal process include:

Step 1: File a Petition and Notify Heirs or Beneficiaries

This notice is sent to all involved in the will. Also, each party is given the chance to object to the petition if necessary. Also, a notice of the probate hearing is typically required to be published to notify creditors and the general public of the beginning of the probate process.

Step 2: Provide Proper Notice With an Inventory of All Estate Property

State law says that the personal representative of the estate must complete an inventory of all businesses, stocks or bonds, real estate property, and other assets. Sometimes appraisers are used to appraise non-cash assets such as antiques, jewelry, and more.

Step 3: Expenses Paid from Estate

After all funeral and estate expenses such as burial expenses, debts, or taxes are paid. Ultimately, the personal representative must determine which creditor claims are legitimate, if applicable. Next, they will pay these debts and bills with estate funding. Also, sometimes some assets of the estate are sold to fulfill these debts. With the taking of the proper legal steps, the decedent’s homestead can be shielded from any creditor claims.

Step 4: Property Titles Transferred

When all debts are resolved, all property is transferred according to the will. When there is no will, our probate attorney will follow all intestacy laws in the State of Florida. The representative of the estate must petition before the court to transfer all remaining assets of the estate. Once the court grants this, they can begin the transfer of assets and create new property deeds with the rightful owner(s).

Who Is Responsible for Opening an Estate?

1. As a general rule, the person named as the executor or personal representative of the will is responsible for opening the estate by filing a probate action in the county in which the deceased person, otherwise known as the decedent, resided.
2. If the decedent did not have a will or if it wasn’t completed and executed correctly, then the person responsible for filing the paperwork to open the estate is a relative or close friend. However, any “interested party” may open the probate.
3. As filing the correct documents and following the correct court procedures is an involved, intricate process, I highly recommend that the executor or relative/close friend retain the services of an experienced probate attorney on the estate’s behalf.

What Documents Should Be Filed to Open an Estate?

Your Probate Attorney will electronically file the following documents with the court in the county in which the decedent resided:

1. A Petition for Formal Administration.
2. A certified copy of the death certificate.
3. Oath of Personal Representative.
4. Affidavit of No Florida estate tax due.
5. Affidavit regarding Criminal history.
6. Inventory.
7. The designation of resident agent.
8. An Order Admitting Will to Probate and Approving the Personal Representative.
9. If no will, an Order Approving the Personal Representative.
10. Other documents as appropriate under the circumstances of each individual estate.

The Cost of Probate in Florida

There are notable negatives associated with the probate process that families should be aware of:

1. Costs involved — thousands of dollars in attorney’s fees and court costs.
2. Length of time it takes — typically 6 to 12 months to complete.

As noted above, the court filing fees alone are $350.00 for Summary Administration and $400.00 for Formal Administration, but the total costs including attorney’s fees can add up to thousands of dollars.

Do I Need Probate if I Have a Will?

Yes — if you own anything in your own name at the time of your death, a probate will be necessary to distribute your assets as you would like them to be distributed.

Do I Need Probate if I Do Not Have a Will?

Yes — the answer is the same as above — EXCEPT that you don’t get to say how your assets are to be distributed. Instead, Florida statutes control who gets your assets, which may not be the way you would like them to be distributed.

How Can I Avoid Probate?

There are several legal strategies available in Florida that can help you avoid the probate process entirely. Here are six methods to consider:

1. Joint Ownership of Property

Joint ownership of real property or personal property (bank accounts, etc.) with another person. The survivor gets ownership upon your death without probate. Husband and wife can take title as “tenants by the entireties”, which is a special type of joint tenancy reserved for married couples. It gives protection against the creditors of one or the other one of the two partners, as well as avoiding probate.

2. Life Estate Quitclaim Deed

You own the property until your death at which time it goes to the person you name as the “remainderman”. Caveat — if you want to sell the property during your lifetime or refinance the property, you will need the remainderman to agree and sign also, UNLESS you use an Enhanced Life Estate Deed (see below).

3. “Ladybird” Quitclaim Deed (Enhanced Life Estate Deed)

This deed allows you to sell the property during your lifetime or refinance WITHOUT the consent of the remainderman. You still own it during your lifetime, and upon your death, it goes to your designated “remainderman” without the need for probate.

4. Transfer on Death (T.O.D.) Accounts

T.O.D. accounts allow you to transfer the asset, usually stocks or other securities, upon your death directly to a named beneficiary.

5. Pay on Death (P.O.D.) Accounts

P.O.D. accounts, usually used for bank accounts or certificates of deposit, are paid to the named beneficiary upon your death without the need for probate.

6. Revocable Living Trusts

All of your assets are placed in your name as Trustee of your trust and upon your death, your successor Trustee distributes your assets in accordance with your directions, and no probate is required. To learn more about trusts and how they can protect your estate, visit our wills and trusts page.

Seek Legal Help Concerning Probate Law in Coral Springs

As probate can be a long, protracted process, I highly recommend using the services of an experienced probate attorney to open the estate and file the correct documents required by the court. Estate planning can be difficult to understand. However, with the help of an experienced estate and probate attorney from The Law Offices of Gary I. Handin, P.A., you can successfully prepare for your or a family member’s death.

Having a well-written will ensures that your family can properly divide your assets among your loved ones. Our probate legal team at The Law Offices of Gary I. Handin, P.A. can help explain the probate process and guide you every step of the way.

To discuss opening an estate, avoiding probate, or other probate issues, please contact Gary I. Handin, P.A. at (954) 796-9600 or 1-877-815-4560 to schedule an appointment. I’ll be happy to answer all your questions!