Wednesday, September 20, 2017
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What steps are involved in the probate process?

Steps involved in the probate process include:

  1. Locating and filing the will
  2. Initializing the probate process
  3. Appointing the personal representative
  4. Informing the affected parties
  5. Filing the inventory
  6. Paying creditors, taxes and fees
  7. Preparing the final accounting
  8. Distributing the assets
  9. Closing the estate

Locating and filing the will

The first step in the probate process is to determine whether the deceased left a will, that is a legal document prepared by a person before death directing others how to distribute his or her property after death. If a will exists, the person is said to have died ‘testate.’

Although determining that a will does exist might be fairly easy, finding the will may be more difficult. It is important to locate the last will and any amendments (called ‘codicils’) to it. Among the places where people commonly keep wills are strong boxes, file cabinets, desk drawers, and safe deposit boxes.

If you have agreed to serve as the Personal Representative for someone’s estate, it is essential to learn in advance where the person keeps the will. If the will is in a bank’s safe deposit box, please keep in mind that the law requires the box to be sealed at the owner’s death. Because you need to get a court order to open a safe deposit box, it is not the best place to keep a will.

Within ten (10) days following death, the will should be filed by your attorney with the probate clerk in the county where the person lived at the time of death. In most cases, however, there is no need to rush to the probate clerk’s office. If you have recently lost a spouse or other loved one, this is a stressful and vulnerable time. You might want to wait a few months’ time, you may be in a better position to tackle the decisions and details of probate.

Initiating the probate process

Any person entitled to the deceased’s property as an heir, as a beneficiary named in a will, or as a creditor (known as ‘interested persons’) can file a written request at the probate clerk’s office to begin a probate proceeding. This written request is typically called a ‘petition for probate administration.’

Appointing the personal representative

The court authorizes a Personal Representative to administer the deceased’s estate. A Personal Representative, also called an executor/executrix, assumes the responsibility for closing an estate as soon as possible in an effort to distribute the estate’s assets to those who rightfully inherit them without delay. This person is critical to the probate process.

Personal representatives have a legal obligation to perform their duties honestly and efficiently. The heirs to an estate can hold a Personal Representative personally accountable for harming the estate’s financial standing by neglect or deliberate action.

A will typically names the deceased’s choice for Personal Representative, and Probate Courts will normally honor this choice. When no will exists, or if the Personal Representative named in the will declines to serve or cannot serve, the court has the authority to appoint a Personal Representative. Once the Personal Representative is appointed, the Probate Court recognizes the Personal Representative’s authority to act on behalf of the deceased’s estate. The Court issues a document, called ‘letters of administration,’ identifying the Personal Representative as the estate’s official representative. A Personal Representative can show this document to a bank officer, for example, to gain access to a checking account.

Needless to say, the Personal Representative should be a trusted family member or close friend who will act to carry out the wishes of the deceased.

A person who decides that he/she does not want to be a Personal Representative can decline the appointment. A back-up, or successor, Personal Representative is then appointed. Similarly, if the Personal Representative feels that the job involves more effort than one person can handle, the Court may appoint a co-Personal Representative.

Informing the affected parties

The Personal Representative is responsible for formal notification and the publishing of public notices in newspapers to inform potential heirs and creditors about the probate proceeding. After giving notice, waiting periods follow. Creditors, heirs, and others can file their claims against the estate during these periods of time.

Filing the Inventory

Next, a Personal Representative is required to develop an inventory and appraisal of an estate’s assets and debts which must be filed with the Probate Court.

When developing an inventory, the Personal Representative should identify all of the estate’s probate property, including both real estate and personal property. To conduct the inventory, the Personal Representative may need to visit a savings and loan or bank to determine the value of a savings account on the date of death. When doing so, it is best for the Personal Representative to take along letters of administration as proof of his/her authority.

While the inventory need not detail every last piece of clothing or all of the pots and pans, the Personal Representative must place a value on the deceased’s personal articles, including keepsakes. A Personal Representative may estimate the value of estate property or hire a professional appraiser to determine the value of probate assets. A Personal Representative should be involved in the Inventory and appraisal as much as possible.

When conducting the inventory, the Personal Representative should distinguish between property that the deceased owned individually (probate property) and jointly with right of survivorship (non-probate property).

Paying creditors, taxes and fees

All debts and taxes owed by the estate are required to be paid. A Personal Representative is responsible for determining the validity of creditor claims and paying the debts. A Personal Representative is also responsible for preparing and filing the tax returns. The following types of taxes may arise in estate administration.

  • Personal Income Tax
  • Estate Income Tax
  • Inheritance Tax
  • Estate Tax

Compared with the substantial value of many estates, court costs and probate administration fees may seem relatively minor.

In addition to court fees, estates normally incur other administration costs. Perhaps most significant among these is attorney’s fees and the cost of providing the required notice. Registered letters may need to be mailed to all interested parties and a Personal Representative must publish notice of the estate in local newspapers. Also, an estate will have to cover the cost of the Personal Representative’s bond.

Preparing the final accounting

The Personal Representative prepares a final accounting of the estate’s value and debts. The final accounting is complete once the inventory, appraisal, and payment of any outstanding taxes and debts is accomplished. The final accounting is a detailed balance sheet that shows the value of all the estate’s assets, along with any income or interest earned, debits paid, money owed, and tax payments. The final accounting is sent to the Court and all interested parties for review and approval. The heirs have a right to challenge this accounting because a mistake could directly affect the size of their inheritances.

Distributing the assets

The Personal Representative next oversees the distribution of the estate’s assets to survivors, according to the instructions in the will. If a person dies without a will, then the intestacy laws of the State of Florida direct the distribution.

Closing the estate

Following approval of the final accounting, a Personal Representative can close the estate. To do so, a Personal Representative submits a sworn statement to the Probate Court and interested parties which specifies all estate business is finished. This may require a formal Court hearing with all interested parties given the opportunity to attend.

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