Frequently Asked Questions About Probate
Q: What is probate?
A: Probate is the process of changing title of your assets after your death from you to your beneficiaries or heirs. During this process, all of your assets that you owned during your lifetime in your individual name and outside of any trust or beneficiary designated asset will be re-titled and distributed to your beneficiaries or heirs.
Q: What is the average cost of probate?
A: Probate prices in Florida are considered high. Average attrition of an estate in Florida caused by probate expense is between 3%-10% of the value of all the assets going through probate. Florida statutes provide that the attorney may be paid 3 percent of the first million dollars of assets in the probate estate. Thereafter, there is a decreasing scale for payment of this percentage fee. This percentage fee is in addition to hourly rate for any “extraordinary” expenses such as assisting the Personal Representative in a real estate closing. The Personal Representative is also entitled to a fee which is usually equal to the attorney’s percentage fee under the statute. For this reason as well as the time involved in the average estate, most people wish to avoid probate, or at least minimize their exposure to the probate process.
Q: How do I change title on my deed now that my spouse has passed away?
A: Ordinarily, spouses own property as tenants by the entirety, which is a form of joint tenancy only available to married people. After one spouse dies, the surviving spouse succeeds to 100% ownership of the property. There is no “new deed” or paperwork which must be done to put the property into the surviving spouse’s name to complete the transfer, this transfer occurs automatically by “operation of law.” If only your spouse owned the property, you need to immediately seek legal advice.
Q: How do I change the title on my spouse’s car now that my spouse has passed away?
A: If your name was also on the title you need to take a certified copy of your spouse’s death certificate and the title to the tax collector’s office and they will help you remove your spouse’s name from the title. If your spouse’s name was the only name on the title, you should seek legal advice. You can also take a look at my blog post on this site about transferring title to a car after the owner dies.
Q: My spouse recently passed away. Do I have to do anything with his/her original Will?
A: Under the law anyone holding the original Will of a person residing in Florida is required to deliver the original Will to the clerk of the probate court in the county in which the deceased resided within 10 days of the deceased’s death. Thus, whether the deceased is your spouse, other relative, or friend, if you have possession of the original Will, you should deliver the original Will to the clerk of the probate court within 30 days of that persons’ death. The clerk will then provide you with a certified copy of the Will for your records. Often, a surviving spouse will not take the original Will to the probate clerk if there is no need for probate and there is generally no problem with this.