J. Kelly Kennedy, Attorney/CPA, PLLC

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What constitutes the probate process?

In most cases, a Florida decedent's (the individual who passed away) estate goes through either the formal or the summary process. The basic definition of probate is the court-supervised process for the following:

  • Identification of the decedent's property
  • Payment of debts (including taxes, if applicable)
  • Distribution of assets to heirs and beneficiaries

Who handles all of these duties?

The personal representative of the estate is responsible for initiating the probate and carrying out these and other tasks as needed. If your loved one executed a will, he or she named a personal representative. Without a will, Florida law dictates the following:

  1. The surviving spouse serves if he or she is able.
  2. If no surviving spouse exists or agrees to serve, the beneficiaries select a personal representative from among themselves.

Exactly what constitutes a probate asset?

The simple answer is any asset owned by the decedent at the time of death. More specifically, probate assets often include the following:

  • Bank accounts in the decedent's name alone
  • Real property such as a home
  • Accounts payable to the decedent's estate
  • Household goods and other personal property

Understanding the ownership of the decedent's property is essential since some assets might not need to go through probate depending on how they are titled. An inventory of the property also provides insight regarding its value, which, if significant, requires additional work. Certain procedures regarding creditors and the payment of debts exist that require completion prior to the distribution of any assets from the estate.

I am the personal representative, but I need help. Can I hire an attorney?

Yes, and you should do so as soon as possible. Any action you take during the administration of the estate involves liability for you as a personal representative. An attorney helps protect you by guiding you through the probate process, helping you meet court deadlines and filing the appropriate paperwork with the court. Even a seemingly "simple" probate must follow statutory guidelines.

Larger, more complicated estates certainly require the assistance of an attorney. Outside of the need for probate, estates with significant assets require a review to determine whether an estate tax return needs filing. In this instance, hiring an attorney/accountant could save you time and money since all of the estate's needs could be taken care of by one office.

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