Probate FAQs, Patriot Legal Group

Frequently Asked Questions

Probate

 

Here you can find answers to many commonly asked questions regarding the probate process. Can’t find the answer you’re looking for?  No problem.  Send us a message and we’ll get back in touch with you with an answer as soon as possible.

General Questions

How long does probate take?

In general, the probate process can take anywhere from a few weeks to a few years.  How long it takes to probate an estate depends on a variety of factors, including the amount of assets, how many beneficiaries are involved, and whether any litigation is involved.

If an estate is very simple and qualifies for a simplified process called Summary Administration, it may only take a few weeks.  Generally, Summary Administration is used where the value of the estate is less than $75,000 or the deceased passed away more than two years ago.

Most mid-sized estates or in several other situations, a Formal Administration is generally necessary and can sometimes be resolved in less than six months if the assets are easy to administer.

However, in estates with a large amount of assets to administer, missing beneficiaries, unknown assets, disagreements over who should be personal representative, or a variety of other issues, the probate process can last many years.

Given all of these factors, the length of time it takes to probate an estate can vary widely depending on the unique circumstances involved.  Whether you need our assistance for a Summary Administration, have the need for a Formal Administration, or need the handle a more complex estate, the probate attorneys at Patriot Legal Group are here to guide you through the probate process.  Contact us today for a free consultation.

How much does a probate attorney cost in Florida?

The costs associated with probate vary widely depending on the complexity of the case.  The two main costs incurred are administrative expenses and attorneys’ fees.  The administrative expenses usually required for probate are court filing fees, publishing fees, recording fees, and postage.  These fees can range anywhere from $300 to $800, or more for a complex estate needing appraisals, accountants, or other extraordinary services.

Because Florida probate rules generally require attorney representation, attorney’s fees are an unavoidable part of the process.  Attorney’s fees vary greatly and depend on the size and intricacy of the estate.  For small estates, representation might cost between $1,500 and $3,000.  For medium sized estates, representation may cost anywhere from $4,000 and $6,500.  For complex estates with a large amount of assets, many probate attorneys will bill on an hourly basis or base attorneys’ fees on a percentage of the estate, with a minimum required fee.  Florida Statute § 733.6171 requires that attorney’s fees be reasonable and establishes guidelines for attorneys to use in setting their fees.

Attorney’s fees may be paid from the assets of the estate if there are assets sufficient to cover the fees or the beneficiaries of the estate may need to front the cost of the fees.  If you need assistance to probate an estate, the probate attorneys at Patriot Legal Group are here to guide you.

How do I avoid probate in Florida?

Probate is a court process which is required when an individual passes away owning financial accounts or assets that do not have a survivorship provision or beneficiary designation.  There are a variety of techniques that can be used to avoid probate in Florida.

Arguably the best way to avoid probate is to establish a revocable living trust.  A revocable living trust allows you, as the initial trustee, complete flexibility to control all your assets and alter the terms of the trust as your life changes.  When you pass away, your successor trustee assumes responsibility and ensures your assets are disbursed according to your wishes, without the need for judicial intervention.  Note that the cost of probate can far exceed the cost of developing a revocable living trust as part of a comprehensive estate plan.

Another way to avoid probate is to jointly own financial accounts and real property.  When an account is jointly owned, the survivor will automatically retain ownership of the account – no probate needed!  Joint ownership of real property also allows property to transfer without probate.  However, the deed must include very specific language to ensure real property transfers to the survivor automatically upon death.  Oftentimes someone does more harm than good making a deed on their own.  Our attorneys can give proper advice on preparing the right kind of deed for your situation.

Yet another way to avoid probate is to ensure you name a beneficiary or pay on death designation for all your individually owned financial accounts.  This includes checking and savings accounts, investment accounts, stock accounts, and retirement accounts.

Lastly, it is important to note – a Last Will and Testament does NOT avoid probate.  Your Last Will and Testament is a probate document.  A Last Will and Testament is simply a guideline of your wishes for the individual named as Personal Representative or Executor to follow through the probate process.

There are multiple strategies a person can use to avoid probate and create peace of mind for yourself and your loved ones during a difficult time.  Each person’s situation requires a unique combination of strategies to achieve the maximum protection with minimum concerns.  Contact the estate planning attorneys at Patriot Legal Group for guidance on the best strategy for you!

Can an executor withdraw money from an estate account?

The short answer is no.  An executor in Florida is called a personal representative.  A named personal representative in a decedent’s last will and testament cannot withdraw cash from the decedent’s account or transfer money from the decedent’s account into their own account.  However, once appointed by the court the personal representative can have the money from the decedent’s bank account(s) transferred to an “estate account” held in the name of the estate with the personal representative as the “owner” or “authorized user” on the account.

Can you still use a joint account if one person dies?

Yes.  The surviving owner of a joint account can continue to use the account.  Unless otherwise agreed to in writing, ownership rights in the account automatically pass to the surviving person or persons named on a joint account upon the death of any owner. Florida Statute § 655.79

Who owns the money in a joint bank account when one dies?

The money in a joint bank account belongs to the surviving owner of the account.  A joint account creates a legal presumption that upon the death of one account holder, ownership rights in the account automatically pass to the surviving person or persons named on the joint account. F.S. § 655.79

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