Clearwater Probate Attorney
Efficiently Handling Your Family's Probate Needs
Backed by more than 60 years of combined legal experience, our probate attorneys have a comprehensive understanding of this area of law. Our Clearwater probate lawyers can help you quickly and efficiently resolve all your probate needs while ensuring your rights and best interests are protected throughout the process.
Also, using our extensive experience and in-depth understanding of estate planning law, we can provide you with well-informed legal counsel. When you need effective legal representation for your probate or trust administration needs, contact O’Connor Law Firm.
What is Probate?
Put simply, probate is the court-supervised legal process of transferring title or ownership of assets and property from a deceased person (the decedent) to a living person or charity.
When is Probate Necessary?
Probate is needed when a person dies owning assets (real and personal property) in their individual name. Probate is also needed when co-owned assets lack the authority for automatic succession.
For example: When real property is jointly owned as tenants in common, each owner owns their individual share of the property. When one owner dies, probate is needed to transfer the deceased owner’s share of the property.
Assets owned jointly with rights of survivorship, as tenants by the entirety and assets payable on death via a beneficiary designation, are not part of the probate estate.
Where Does Probate Take Place?
Generally, probate occurs in the county in which the decedent resided, which may not be the county or state where the death occurred. The death certificate will declare the county of residency.
Residency information can also be obtained from:
- Property records
- A driver’s license
- A voter registration card
- Similar documents that state a person’s home address
What Assets are Subject to Probate in Florida?
Assets that are subject to probate in Florida are those that are solely owned by the deceased individual and do not have a beneficiary or transfer-on-death designation, such as real estate, bank accounts, and investments. Additionally, assets that are owned by the deceased person as tenants in common, or assets that are owned by an unfunded revocable trust, are also subject to probate. Assets that are payable to the estate, such as settlements or refunds issued after the individual's death, are also included.
It's worth noting that assets that are jointly owned with the right of survivorship, assets with a named beneficiary, or assets that are held in a properly funded revocable trust are typically not subject to probate in Florida. However, the specific rules regarding probate can vary depending on the circumstances of each case, so it's important to seek advice from a qualified attorney for legal guidance.
What is the Florida Probate Process?
Probate is the process in which the courts transfer the deceased person's assets to their beneficiaries. Generally, the deceased person doesn't own the assets jointly or does not have any beneficiary listed, or the assets are in their name alone, then probate will be required.
The probate process begins by filing:
- The decedent’s will (if any)
- The death certificate
- And certain other probate documents with the Clerk of the Circuit Court
Then, the probate judge will appoint a personal representative (also known as an executor or administrator). The personal representative will need to fulfill their legal duties that are required by law.
What Are the Legal Duties of the Personal Representative?
The personal representative is required to:
Identifies and gathers the decedent’s assets
Notifies creditors, pays bills, manages the estate
Filing all required documents required by the court
Distributes the probate assets to the beneficiaries
Everything the personal representative does is supervised by the Court.
How Long Does Probate Take in Florida?
It should be noted, that the probate can take up to a year or longer with:
- Court cost
- Administration fees
- Legal fees
- And other costs and expenses being incurred
What Happens if There is no Will in a Florida Probate Case?
In the absence of a will in a Florida probate case, the deceased person's assets will be distributed following the state's intestacy laws. These laws establish a specific order of priority for the distribution of assets to the deceased person's surviving relatives, such as spouse, children, parents, siblings, grandparents, or other relatives.
If the deceased person is survived by a spouse but no children or parents, the spouse will inherit the entire estate. If the deceased person is survived by a spouse and children who are also the children of the surviving spouse, the spouse will inherit the entire estate. However, if the deceased person is survived by a spouse and children who are not the children of the surviving spouse, the spouse will receive half of the estate and the other half will be divided equally among the children.
If there are no surviving spouse, children, or parents, the assets will go to the deceased person's siblings, grandparents, or other relatives in a specific order of priority. If there are no surviving relatives, the assets will go to the state of Florida. It's worth noting that the absence of a will can result in more complex asset distribution and may lead to disputes among family members. Therefore, it's recommended to create a will to ensure that your assets are distributed according to your preferences.
The trust administration process begins when a decedent passes with a valid trust in place. The successor trustee becomes responsible for distributing the assets and paying any debts of the estate in accordance with the wishes of the decedent. This is generally a simplified process compared to probate, and administration can take place without having to go to court.
Your trust administration lawyer will help guide you through the process, including:
- Handling creditor claims
- Beneficiaries distributions
- And disputes
O'Connor Law Firm works with families to ensure the wishes of the estate are carried out.
In the case of probate, the decedent’s will typically nominate a personal representative who may petition the court to be named personal representative of the estate. In administration, this is carried out through the terms of the trust.
If the decedent died without a will, which is also known as intestate, a family member, beneficiary, or attorney may petition the court to be named as the personal representative of the estate.
If the petitioner is qualified under Florida law to serve as a personal representative, the judge will issue “Letters of Administration” which provides the personal representative with the legal authority to administer the estate.
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