In the 2018-2019 fiscal year, there were 59,095 probate filings in the State of Florida. Following a person’s death, Florida Law requires you to file the will within ten (10) days of the person’s death. This puts the original will into the court’s custody but is not the same as probating the estate.
It is surprising to many who find themselves managing an estate that hiring a probate attorney is mandatory. It is also a state law that payment of Florida probate attorney fees is from the estate assets.
The total cost of probate is dependent upon a number of factors. This includes the location of the estate, whether it is simple or complex, and whether there is a need to sell real property.
Read on to learn everything you need to know about Florida probate laws. This includes the steps and cost of administering the estate and the easiest way to sell a home you inherit.
The administration of an estate takes place in the Florida probate court. There are fees you pay to the court when filing the paperwork necessary to open the estate and complete the probate process. These fees vary depending upon whether anything such as the contesting of a will or any other adversary proceedings or litigation takes place.
In addition to the court filing fees you may encounter the following:
In the majority of probate cases, the executor receives reasonable payment of fees. In accordance with § 733.617 of Florida law, compensation is payable to the personal representative from the assets of the estate. The determination of reasonable fees for an executor is a percentage of the total value of the estate:
In addition to receiving compensation against the value of the estate, the personal representative may also receive additional payment for performing extraordinary services, including the selling of real property, litigation, maintaining the business of the deceased, or any other special services necessary.
It may be necessary to obtain appraisals to determine the value on the date-of-death for stocks, business interests, personal property, business holdings, and real estate, including the residence of the deceased. Personal holdings such as collectible figurines, artwork, jewelry, automobiles, collectible coins, and more may be subject to appraisals. The fees associated with this will depend on the individual appraiser and the type of asset.
Every estate is different, and there will likely be miscellaneous fees relative to your particular estate. This can include things such as yard maintenance, housekeeping fees, pool and spa maintenance, or care for pets or livestock. There may also be fees for posting a bond, publication fees, or fees for out-of-state assets. Your probate attorney will advise what expenses you may pay from estate assets.
With the exception of very small estates, or in a case where the personal representative is the sole beneficiary, Florida law requires a probate and estate attorney to oversee probate administration. This means that probate lawyer fees are a normal expense the estate must incur. The actual amount of probate attorney fees you pay will depend on the size of the estate.
Attorney fees for handling probate and trust administration will vary depending on the individual estate, and whether or not there appear to be any disputes with the will or distribution of assets. Probate law is complicated and the process can be lengthy.
When you consult with an estate and probate attorney, they will provide you with the probate estate fee. Depending on the size of the estate, they may offer to perform the estate duties using a flat fee. This means that rather than paying a percentage of the estate, they charge a one-time fee to cover all of their duties.
Flat fee rates may work to the attorney’s advantage if it takes them less time than anticipated to complete the estate. They may also be to your advantage if the probate process takes longer than the attorney’s estimation.
The retainer/fee agreement you sign will specify duties the attorney will perform, what their fee is, and if there are any additional expenses. The attorney fees do not cover incidental expenses such as filing fees, transcription fees, witness fees, and office expenses such as copying and postage.
The Florida Probate Code is complex, including deadlines and rules that you must comply with. Failing to follow these guidelines may result in a delay in administering the estate, increasing costs. For this reason, the probate code includes information on what a reasonable attorney fee is for the handling of probate.
Costs and attorney fees are payable pursuant to Florida Statute § 733.106 which states that any attorney providing services on behalf of an estate may receive reasonable compensation. It is permissible to pay an attorney representing a personal representative from the estate without a court order. The compensation is reasonable if the amount is based on the inventory value of the estate as follows:
The probate attorney may also collect compensation for any extraordinary services they perform. This includes the contesting of a will, auditing of taxes, postmortem tax planning, and preparation of the estate tax return. It may also include the purchase, leasing, or sale of real property and more.
When paying probate lawyer fees the court may direct which portion of an estate must pay those fees. This direction encompasses several factors.
This includes if a beneficiary created an unjust increase in the attorney fees and costs. Because of factors such as this, the court may determine fees be paid out of that person’s portion of the estate only.
If the attorney is administering a trust, the attorney may request the court issue an order awarding attorney fees pursuant to Florida Statute §736.1005. As with attorney fees on an estate, the court may direct which portion of a trust the attorney fees be paid from pursuant to Florida Statute §736.1006.
A personal representative is responsible for the administration of an estate, and by Florida law, they must have a Florida probate attorney to assist and oversee the administration of the estate. The attorney will advise the personal representative of their legal rights and duties. The attorney will also represent the executor of the estate during probate court proceedings.
The estate attorney represents the personal representative, not the beneficiaries. Duties of a probate attorney include overseeing the following:
The purpose of probating an estate is to finalize the affairs of the deceased. The probate attorney must advise and oversee the handling of the estate by the Personal Representative to ensure procedures are done in accordance with the law. The duties of a personal representative include:
A personal representative has a fiduciary duty to the beneficiaries of the estate. The probate attorney’s position is to assist in the filing of all necessary paperwork. The attorney will also make sure the personal representative completes all duties within the appropriate time frame and in the correct manner to comply with legal requirements.
The personal representative only distributes assets where the decedent was the sole owner. Those items are subject to probate.
Assets that do not fall under probate include items the decedent held jointly with another person. Other items such as investments or life insurance policies that list beneficiaries are paid directly to those persons and do not go through the probate process.
It will take approximately six (6) months to complete the probate process. Some matters can take twelve (12) months, depending on the specifics of the case. This time frame includes time for the appointment of the personal representative or executor.
There is a ninety (90) day creditor’s time period, which allows for creditors to respond with claims of debt against the estate. Once claims are made against the estate those debts must be paid from the assets. After the estate debts are paid in full, the personal representative may petition the court to transfer all remaining assets to the beneficiaries.
The executor of the estate must prepare a final accounting of the estate, and then petition the court for final distribution. Notice of a hearing is sent to all interested parties. The hearing confirms that all creditors are paid, and the distribution of assets is complete. The personal representative then files a closing statement confirming the completion of all asset distributions.
Selling of the estate assets, including real property, may even be necessary to settle estate debts, pay probate attorney fees, and pay personal representative fees. When selling a home during probate, the court will usually require the following items be provided to the court:
If the court finds all information to be sufficient, an order will issue approving the sale of the property. Once the property is sold the proceeds must first pay estate debts, then distribution made of remaining assets to the beneficiaries.
Summary Administration is a process in which an estate may qualify for an abbreviated probate process. Qualification may be obtained if the estate has an asset value of less than $75,000, not including a homestead or exempt assets.
The second manner in which an estate may qualify is if the decedent has been dead in excess of two (2) years. In this circumstance, the estate no longer needs to pay unsecured creditors. This qualification may apply to an estate of any size.
To request summary administration it is necessary to file a petition requesting the court enter an order of distribution for the estate assets. The court will issue such an order upon satisfaction that all creditors are in receipt of payment and no debt remains outstanding. This entire probate process normally takes less than a month to complete.
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