If you have been named as the executor of a will or found out you’ve inherited property in Florida, you may be wondering what step you need to take to sell a house in probate and distribute other assets to the beneficiaries. Probate is the legal process of settling a deceased person’s estate and transferring the title of their property to their heirs or devisees. Probate can be complex and time-consuming, depending on the size and nature of the estate, the number of creditors and beneficiaries, and whether there are any disputes or challenges to the will.
In this blog post, we will explain what probate is, describe the different types of probate in Florida, provide a general overview of how to probate a will in Florida and distribute assets like houses, condominiums or just raw land. However, this post is not intended to be legal advice or a substitute for hiring a qualified probate attorney. Probate laws and procedures vary from state to state and can change frequently. Therefore, it is highly recommended that you consult with a probate attorney who is licensed and experienced in Florida probate law before you start the probate process.
What is Probate?
Probate is the court-supervised process of identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets pay for the probate proceeding’s cost, the decedent’s funeral expenses, then the decedent’s outstanding debts. The remainder of the assets is distributed to the decedent’s beneficiaries according to the will or, if there is no will, according to Florida’s intestacy laws.
Probate administration applies only to probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of probate assets may include:
- A bank account or investment account in the sole name of a decedent
- A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate
- A house or other real estate titled in the sole name of the decedent, or in the decedent’s name and another person as tenants in common
- Probate assets do not include assets that have a designated beneficiary or are owned jointly with rights of survivorship.
The purpose of probate is to ensure that the decedent’s wishes are honored, that their creditors are paid, and that their beneficiaries receive their rightful inheritance. Probate also provides a public record of how the estate was administered and distributed.
What are the Different Types of Probate in Florida?
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court-supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances.
Formal Administration
Formal administration is the most common type of probate in Florida. It is required for estates that have more than $75,000 worth of probate assets or have any creditors. If the estate has one or more houses to sell, formal administration is most likely the route you will take. Formal administration involves filing a petition for administration with the circuit court in the county where the decedent was domiciled at death. The court will appoint a personal representative (also known as an executor) to administer the estate. The personal representative must be represented by an attorney licensed in Florida.
The personal representative has several duties and responsibilities, such as:
- Identifying, inventorying, and appraising the estate assets
- Publishing a notice to creditors in a local newspaper and serving a notice on known creditors
- Paying valid claims against the estate
- Filing tax returns and paying any taxes owed by the estate
- Distributing the remaining assets to the beneficiaries according to the will or intestacy laws
- Filing a final accounting and report with the court
- Formal administration can take anywhere from six months to two years or longer, depending on the complexity of the estate, the number of creditors and beneficiaries, and whether there are any disputes or challenges to the will. That being said, it is important to note that you do not have to complete the entire probate process to sell a house fast, particularly if the proceeds from the sale will help pay probate-related expenses like attorney fees.
Summary Administration
Summary administration is a simplified form of probate that can be used for estates that have less than $75,000 worth of probate assets (excluding exempt property such as homestead) or have been open for more than two years. Summary administration does not require the appointment of a personal representative or the filing of an inventory or accounting. Instead, the beneficiaries or the decedent’s surviving spouse can file a petition for summary administration with the court, requesting that the court enter an order releasing the assets to the beneficiaries without further administration.
Summary administration can be faster and cheaper than formal administration, but it also has some drawbacks. For example, summary administration does not provide protection from creditors’ claims, and it may not be suitable for estates that have complex or disputed issues.
How to Probate a Will in Florida: A Step-by-Step Guide
The following is a general overview of how to probate a will in Florida that contains higher value assets like houses using formal administration. However, this guide is not comprehensive and may not apply to every situation. Therefore, it is advisable to consult with a probate attorney before you start the probate process.
Step 1: Locate and Review the Will
The first step is to locate and review the original will of the decedent. The will may be in the decedent’s possession, in a safe deposit box, with an attorney, or filed with the court. The will should be examined for its validity, completeness, and clarity.
The will should also name a personal representative and one or more alternate personal representatives to administer the estate. If there is no will or if the will does not name a personal representative, the court will appoint one according to Florida law.
Step 2: File a Petition for Administration
The next step is to file a petition for administration with the circuit court in the county where the decedent was domiciled at death. The petition can be filed by any interested person, such as a beneficiary, a creditor, or a personal representative named in the will. The petition must include information such as:
- The name and address of the petitioner
- The name and date of death of the decedent
- The names and addresses of the beneficiaries and their relationship to the decedent
- The names and addresses of any co-personal representatives and their relationship to the decedent
- A statement that the decedent left a valid will and that it is attached to the petition
- A statement that venue is proper in the county where the petition is filed
- A statement that all interested persons have been notified or waived notice of the petition
- A request that the court admit the will to probate and appoint the personal representative.
The petitioner must also pay a filing fee and submit an oath of personal representative and a designation of resident agent. The oath of personal representative is a sworn statement by the personal representative that he or she accepts the appointment and will faithfully perform his or her duties. The designation of resident agent is a document that names a person who resides in Florida and agrees to accept service of process on behalf of the personal representative.
Step 3: Obtain Letters of Administration
After reviewing the petition and verifying its contents, the court will issue an order admitting the will to probate and appointing the personal representative. The court will also issue letters of administration, which are official documents that grant authority to the personal representative to act on behalf of the estate. The personal representative must provide copies of these letters to anyone who has custody or control of any estate assets.
Step 4: Identify, Inventory, and Appraise Estate Assets
The personal representative must identify, inventory, and appraise all probate assets within 60 days after being appointed. The inventory listing is important if you are going to sell a house in probate in Florida and must include a description and value of each asset as of the date of death. The inventory must be filed with the court and served on all interested persons. The value can be based on appraisals, market prices, tax assessments, or other reliable sources. In the case of real estate, you can contact a buyer directly like House Solutions USA to determine the value of property in its current condition. We are professional home buyers who routinely pay cash for houses across Florida and can provide you with a fair cash value estimate; we provide this service at no cost to you.
Step 5: Publish Notice to Creditors
The personal representative must publish a notice to creditors in a local newspaper once a week for two consecutive weeks within three months after being appointed. The notice must inform creditors that they have three months from the date of first publication to file their claims against the estate with the court. The personal representative must also serve a notice on any known creditors.
Step 6: Pay debts
You’ll use funds from the estate to pay all debts, bills, and taxes. All of the estate’s debts must be paid before any assets can be paid out to beneficiaries.
Step 7: Request approval to distribute assets
After assets are inventoried and debts are paid, you’ll ask the court for permission to distribute remaining assets to the deceased’s beneficiaries.
Step 8: Sell a house in probate
After you get court approval, you can then sell your inherited property in Florida and distribute all remaining assets to the deceased’s beneficiaries according to their will.
Step 9 Close the estate
Once these steps are complete, you’ll petition the court to close out the estate. The personal representative must file a petition with the court requesting that they be discharged of their obligations once the distribution has been completed. While this sounds like a formality, it is an important step – it is judicial recognition that the personal representative has performed their obligations under the will and that the estate is closed to any further claims. This ends the probate process.
As you can see, it’s a fairly length process to sell a house in probate in Florida, but the good news is that you have help. Contact House Solutions USA today and let us take on the stress; we have assisted many different buyers with inherited property in Florida, and are ready to help guide you through the process.