Whether your spouse has just passed away or you have lost your mom or dad, the emotional trauma of losing a loved one often comes with a bewildering array of financial and legal issues surrounding probate & trust administration demanding attention. It can be difficult enough for family members to handle the emotional trauma of a death, let alone taking the steps necessary to get these matters in order.
If you are the executor or representative of the will, you first should secure the tangible personal property, meaning anything you can touch such as silverware, dishes, furniture or artwork. Then, take your time while bills need to be paid. They can wait a week or two without any real repercussions. It is more important that you and your family have time to grieve. There will be ample time to deal with the probate & trust administration.
When you are ready, you should meet with an experienced probate attorney or trust administration lawyer to review the steps necessary to administer the deceased person’s last will and testament, or revocable trust if one was established by the decedent. While the exact rules of probate & trust administration differ from state to state, the key actions include:
- File the will and petition in probate court in order to be appointed personal representative (executor). Florida Statutes, Section 732.901, provides that the person in custody of the decedent’s will should deposit the will with the clerk of the court within 10 days of receiving information that the person is deceased.
- Collect the assets. This means that you need to find out about everything the deceased owned and file an inventory with the probate court.The court will issue letters of administration to the personal representative (executor) that will authorize the personal representative to obtain control over all of the decedent’s assets. If there is a trust, then the successor trustee must establish that he or she is the properly authorized successor trustee through preparation of certain documents in support of an affidavit of successor trustee, which will legally allow the successor trustee to exercise control over all of the assets owned by the trust.
- Identify the decedent’s creditors, pay legally enforceable obligations and taxes. The personal representative (executor) appointed by the probate court must make a diligent search for “ascertainable” creditors. If an estate tax return is due, the Internal Revenue Code requires that it be filed within nine months of the date of death.
- Distribute property to the beneficiaries named in the last will and testament or the trust document. If there is no will or trust, then distribute the assets to the decedent’s heirs at law. Florida Statutes, Chapter 732 (the “intestacy statute”) establishes the heirs at law in Florida if there is no will or trust in place. Generally, executors do not pay out all of the estate assets until the period for creditors to make claims runs out which can be as long as a year. In Florida, the probate code provides that creditors may make claims against the estate for up to 90 days after the notice of death appears in the local newspaper, or up to 30 days after a creditor receives actual notice that the probate has been opened in the Florida probate court.
- Finally, you must file an account with the court listing any income to the probate estate since the date of death and all expenses and estate distributions. The trustee of a revocable trust must provide a full accounting to the beneficiaries of the trust.
While some of these steps can be avoided through trusts or joint ownership arrangements, whoever is left in charge still has to pay all debts, file tax returns and distribute the property to the rightful heirs.
While some of these steps can be avoided through trusts or joint ownership arrangements, whoever is left in charge still has to pay all debts, file tax returns and distribute the property to the rightful heirs. An experienced probate attorney or trust lawyer can help ensure you do not overlook any of the important steps necessary for a probate & trust administration.
We know the Florida Probate Code (Chapters 731-735, Florida Statutes) and the Florida Trust Code (Chapter 736, Florida Statutes) that govern the administration of probate estates and trust estates, respectively. We can help the personal representative of the probate estate, or the successor trustee of the revocable living trust, deal with the intricacies and demands of a probate & trust administration. Please let us know how we can help you with your probate & trust administration.