Decedent is the legal term for the person who died.
The court recommends that you hire an attorney to handle your spouse’s estate. In most instances, an attorney is required. The two exceptions when the law does not require an attorney is when the estate is of a small amount and when you are the only beneficiary to the estate.
If the Decedent did not own any real property and the Decedent’s assets totaled $6,000 or less, then you are not required to hire an attorney because the Decedent’s estate qualifies as a small estate. The Miami-Dade Clerk of Courts can assist you with completing the petition to receive a court order to obtain the Decedent’s assets. For more information on completing the petition for a small estate, go the Miami-Dade Clerk of Courts.
If you are the only beneficiary and can serve as the Personal Representative for your spouse’s estate, then the law permits you to handle your spouse’s estate without an attorney. Fla. Prob. R. 5.030(a).
If your spouse had a will, the will indicates whether you are the only beneficiary to the estate.
If your spouse did not have a will, the intestate laws determine whether you are the only beneficiary. Section 732.101, Florida Statutes. If your spouse did not have any children, then you are the only beneficiary. If your spouse had children who are also your children, then you are the only beneficiary.
It depends on the type of assets the Decedent had. If your spouse’s estate qualifies as a small estate, the Miami-Dade Clerk of Courts will assist you and you are not required to hire an attorney. Your spouse’s estate is a small estate if the Decedent did not have any real property and the Decedent’s assets were $6,000 or less. Go to the Miami-Dade Clerk of Courts here on how to obtain the documents from the clerk for a small estate.
If your spouse’s estate does not qualify as a small estate and you are not the only beneficiary, then you need to hire an attorney. Fla. Prob. R. 5.030(a). If you cannot afford an attorney, please contact the Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.
Once you have hired an attorney, the attorneys’ responsibility will be to draft and present petitions and orders to the judge on behalf of the personal representative. In the orders, the judge authorizes the appointment of a personal representative of the estate and authorizes the personal representative to complete tasks including but not limited to paying estate expenses, paying creditors and distributing estate property.
The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
- Identify, gather, value and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate ‘known or reasonably ascertainable’ creditors, and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.
To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.
Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, or mentally or physically unable to perform the duties, or have been convicted of a felony.
A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.
If the decedent had a valid will, the judge will appoint the person or institution named by the decedent in that will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.
If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the judge to serve as personal representative. If the decedent was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.
You need to provide your attorney with the original death certificate and, if your spouse has one, the original will.
During the case, your attorney and/or the personal representative may ask you to sign petitions, consents, waivers or joinders. Please be sure to ask your attorney any questions you have before signing the documents.
It depends on the facts of each situation; some probate administrations take longer than others. For example, the personal representative may need to sell real estate before settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take at least six months to properly handle.
If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative. This period can be extended if necessary.
If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.