Navigating the Orlando Probate Process: What Every Executor Needs to Know

Key Takeaways

  • Probate is a court-supervised process that ensures assets are properly distributed and debts are paid.
  • In Florida, the executor is called a “personal representative,” and their duties are both legal and fiduciary.
  • Summary administration is available for smaller estates or when more than two years have passed since death.
  • Avoiding probate may be possible with strategies like trusts, joint ownership, and beneficiary designations.
  • Effective communication, proper planning, and hiring an experienced probate attorney can ease emotional and legal burdens.

Introduction

Navigating the probate process can be overwhelming for families, especially after the loss of a loved one. In this episode of Life, Legacy and Wealth, estate planning and probate attorney Tom Moss of Sawyer & Sawyer, P.A. walks through what every personal representative (executor) needs to know to settle an estate in Florida. Whether you live in Orlando, Windermere, Winter Park, Winter Garden, Dr. Phillips, or the surrounding areas in Orange, Lake, Osceola, and Seminole Counties, understanding the probate process can help you avoid costly mistakes and family conflict.

Let’s break down the conversation and demystify probate in Florida.

Understanding Probate in Plain English

Tom Moss explains that probate is simply the court process of transferring someone’s assets after they pass away. It doesn’t matter whether someone dies with a will (testate) or without one (intestate) — either way, probate is required to legally pass ownership of assets that are just in the decedent’s name and pay off creditors. Many people mistakenly think having a will avoids probate, but that’s not true. The will actually goes through probate.

In Florida, the executor is called the “personal representative.” This person works with a probate attorney to gather assets, notify and pay creditors, file taxes, and distribute assets under court supervision.

First Steps for the Personal Representative

The first thing to do after a loved one passes is to secure the home. Items can disappear quickly, so safeguarding is essential. Next, locate the will or trust documents and then contact a probate attorney. Once those basic steps are taken, there’s no need to rush. The family should take time to grieve and then begin the legal process when ready.

Summary vs. Formal Administration in Florida

Summary administration is a simplified probate process available when:

  • The estate is worth less than $75,000, or
  • The person died more than two years ago, and
  • There are no outstanding creditors.

It allows for a quick transfer of assets without the full court process. Most estates require formal administration, especially when real property, multiple accounts, or significant debts are involved.

How Long Does Probate Take in Florida?

Once the personal representative is appointed and the probate is opened, a legal notice for creditors is published, allowing them three months to file claims. Even in a straightforward case, that waiting period means it will take at least 4-6 months. More complicated estates (multiple creditors, real estate, tax issues) can take 9 months to over a year.

Core Responsibilities of a Personal Representative

The personal representative must:

  1. Locate the will and estate planning documents.
  2. Inventory all assets and liabilities.
  3. Identify and notify known creditors.
  4. Publish a legal notice for unknown creditors.
  5. Maintain communication with beneficiaries.
  6. Pay valid debts and file tax returns.
  7. Distribute the estate according to the will or intestate laws.

It’s a fiduciary role, and the representative must act in the best interests of the estate and beneficiaries.

Creditor Notices and Deadlines

Direct notice is sent to known creditors, and they must file a claim within 30 days. Unknown creditors are notified via a published notice, which gives them three months. If they miss that window, they lose their claim.

Handling Homestead Property

Homestead refers to the deceased’s primary residence. It’s protected from most creditors (except IRS, mortgages, or construction liens) and isn’t technically a probate asset. The court determines who inherits it. If the homestead is the only asset, legal fees can be tricky because it can’t be used to pay them. Still, probate is required to clear title.

Common Mistakes by Executors

Some common pitfalls for personal representatives include:

  • Failing to diversify assets: Keeping all assets in one volatile stock can breach fiduciary duty.
  • Paying creditors too soon: There’s a statutory priority order. Paying out of order may create liability.
  • Ignoring tax responsibilities: Final 1040s, 1041s (estate income tax), and potentially 706s (estate tax) must be filed.

Special Situations in Florida Probate

Ancillary probate applies when someone lived out-of-state but owned property in Florida. In that case, a secondary probate is needed here while the main probate occurs in their home state.

Real Estate, Rentals, and Businesses

Non-homestead properties such as rentals and business interests are part of the probate estate. These assets must be inventoried and may be sold to pay debts.

Blended Families & Multiple Marriages

Florida has strict rules around elective share and spousal inheritance. Even with separate accounts, a spouse is entitled to a portion unless there’s a prenuptial or postnuptial agreement. It can get complex with stepchildren or later-in-life marriages. Planning ahead is key to avoiding disputes.

How to Avoid Probate

Three main probate-avoidance tools are:

  1. Joint ownership with rights of survivorship
  2. Beneficiary designations on accounts
  3. Revocable trusts

Each method has its place, but improper setup can cause legal issues, especially for families with special needs beneficiaries or complex dynamics.

Helping Your Parents Prepare

Adult children can encourage their parents to:

  • Create or update their estate plan.
  • Keep an inventory of assets and debts.
  • Safely store passwords and important documents.
  • Clearly communicate their intentions.

Approach these conversations with empathy and patience.

Finding the Right Probate Attorney

Look for an attorney who:

  • Specializes in estate planning and probate law
  • Has many years of experience
  • Is highly rated by peers (Super Lawyers, Best Lawyers)
  • Communicates clearly and promptly

Also check their record on the Florida Bar website for any disciplinary history.

Attorney Fees in Florida Probate

Florida statutes suggest a percentage fee based on estate value.. This can vary based on estate complexity.

What to Bring to Your First Meeting

Be prepared with:

  • Will or trust documents
  • Account statements
  • List of debts
  • Real estate addresses
  • Insurance policies
  • A family tree if there is no will

These documents help assess the estate and start the process.

Preventing Disputes Over Valuables

To reduce family conflict over personal items:

  • Use Florida’s separate writing option to designate specific bequests
  • Communicate openly with family
  • Safeguard the home immediately after death

Without clear direction, dividing sentimental items can become contentious.

Call to Action

Settling an estate doesn’t have to be overwhelming. With proper planning and experienced legal guidance, the probate process can go smoothly and respectfully. If you need help navigating probate in Orlando, Windermere, Winter Garden, Winter Park, Dr. Phillips, Horizon West, or anywhere in Orange, Lake, Osceola, or Seminole County, reach out to Tom Moss at Sawyer & Sawyer, P.A.

Schedule a consultation today: https://ift.tt/W6usgqo
 Or call: 407-909-1900

The post Navigating the Orlando Probate Process: What Every Executor Needs to Know appeared first on Sawyer & Sawyer.



from Sawyer & Sawyer https://ift.tt/7Xuv6qW
via Sawyer & Sawyer Professional Association

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