What is probate?


In its simplest form, probate administration is designed to gather the decedent’s assets, pay claims against the estate, if any, and distribute the balance of the estate to the beneficiaries.

Opening an Estate/Appointing a Personal Representative

In order to go through probate, an estate is opened in the Florida circuit courts under the probate division. The court will usually appoint a personal representative (called an executor in some other states) to make decisions and handle matters for the estate under the guidance of his or her probate lawyer. In certain instances the court may appoint a court curator which is similar to a personal representative, but with limited powers.

The personal representative is given the authority to act for the estate through letters of administration which are prepared by his or her probate attorney and signed by the court. Our law firm handles most correspondence with the estate. Any liquid assets are typically sent to a restricted depository that is a bank account designated to hold and protect assets of the estate until they are ready to be disbursed to creditors and beneficiaries.

As required by some Florida counties, we will set up the following for estates:

  • Restricted Depository – an account into which all liquid funds of the estate must be deposited
  • Attorney’s Trust Account – an account kept by the attorney for funds received on behalf of the client
  • Fiduciary Bond – bond protection against wrongdoing by the personal representative and to ensure there will still be money to make creditors and beneficiaries whole.


Mr. Schwartz will discuss and advise issues under consideration with the personal representative and draft the necessary documentation for the personal representative to sign. Close physical proximity is not required for us to work with a personal representative. We represent clients all over the country in estate matters involving Florida estates.

File a Wrongful Death Claim

The probate lawyer’s goal is to maximize the value of the estate through skillful handling of assets and claims against the estate.

Assets

Part of the wills and probate attorney’s expertise includes the ability to locate assets which may require examination of tax returns, safety deposit boxes and implementation of other approaches to gather the assets of the estate.

Not all assets are probate-able. In other words, if an asset names a beneficiary, such as an insurance policy, that asset would not be subject to probate. A joint bank account is also not a probate-able asset. However, if a beneficiary predeceases the decedent, and a new beneficiary is not named, that asset would become subject to probate. A personal injury claim, whether or not filed before death, is a cause of action and an asset of the estate and therefore, probate-able. By law, the estate must have an assigned personal representative in order to file a wrongful death claim for surviving family. The timing of lawsuits, such as when the estate is opened and brought into probate court, is often a factor in determining how to maximize assets. Our law firm works closely with personal injury lawyers to ensure the timing of probate and wrongful death claims are geared to benefit the client’s interests.

Claims

The probate lawyer has to make an effort to identify claims, either through the mail, by inspecting the deceased’s wallet and noting credit cards through bank statements, cancelled checks, financial statements and other various means. During collection of assets, our law firm will also publish a notice in the newspaper advising creditors to file a claim with the estate. However, the personal representative must give special attention to creditors who are “known or reasonably ascertainable” and must diligently attempt to contact them (not just through newspaper publication) to provide them with the opportunity to file claims. Every claim must be stricken or paid. Payment has to be done to obtain a “satisfaction and release of claim.”

As a probate attorney, in addition to maximizing assets, another way to increase the value of an estate is to reduce claims. We work in favor of the beneficiaries as much as possible in this regard.

Medicaid

Under Florida and Federal law, when a party over the age of 55 is deceased and you open an estate for probate, Medicaid must be notified. Federal law requires estate recovery of funds for Medicaid services. Medicaid may file a claim in the estate with the intention to recover on the lien when the party has deceased.

Eight Classes of Claims

There are eight classes of claims on an estate:

  1. Personal Representative/Attorney Fees
  2. Funeral expenses
  3. Medicaid
  4. Medical/Hospital Expenses
  5. Family Allowance during probate
  6. Child Support
  7. Business Debts
  8. Other Ordinary claims, such as a judgment for breach of contract, etc.


After claims are paid, the beneficiaries receive the balance of what remains. Once this process is completed the estate is closed.

How long does probate take?

On average, probate takes about a year, sometimes significantly longer and sometimes significantly less time, depending on the complexity of the estate. When assets are scattered in a number of bank accounts, or if an asset is a cause of action, such as a wrongful death lawsuit, these circumstances can prolong the probate process.

Arrange a Consultation

Located in Aventura Florida, wills and probate Attorney, Steven K. Schwartz, serves clients throughout Miami, North Miami Beach, and Miami Beach and in cities throughout Dade County as well as nationwide in matters involving Florida probate administration. In general, estates going through probate in Florida require legal representation. Our firm looks forward to answering your questions and explaining the legal issues involved so you can make informed decisions regarding probate. Please email or contact our office at (305) 936-8844 to arrange a consultation.