Probate is a legal proceeding under the jurisdiction and supervision of the Probate Court in the decedent’s county of residence. The probate process is used to appoint an executor (“personal representative”), gather and value the decedent’s assets, notify and pay creditors, pay court costs and administration expenses, and distribute the remaining assets to the intended beneficiaries. In Florida, the “personal representative” is in charge of “probating” the estate. There are three kinds of probate proceedings in Florida, “formal,” “summary,” and “ancillary.” The most common is formal administration. Summary administration is only available for small probate estates, less than $75,000. Ancillary administration is generally required when the decedent is domiciled in another state but owns property in Florida. For example, if a new York resident owns property in Naples, then the executor (personal representative) would open an ancillary administration in Collier County to transfer title to the Naples property.

A trust administration is a process used to administer assets in a decedent’s trust at the time of death. Many tasks are the same as probate, such as gathering and valuing assets, paying creditors and administration expenses, and distributing assets to beneficiaries. However, there is no Probate Court involvement in a trust administration. This results in no court costs and virtually no court filing requirements. All documents filed with the Probate Court are available for review by the general public, whereas a trust administration protects the privacy of all interested parties. The trust administration process is generally faster than a probate proceeding. However, it is often the case that there is both a Trust and a Will and probate will still be required to transfer any and all “probatable” assets.

When a loved one dies, you should contact a qualified estate planning attorney, preferably the attorney who drafted the estate planning documents. That attorney will be in the best position to readily understand the planning that was done and to advise you accordingly. The ideal time to meet with the attorney is within the first week following the date of death, as this may be a period of time when the family is together. It is important to have this meeting in order to protect the estate planning that was done. Family members who act too quickly without legal advice by selling or distributing assets can unintentionally defeat the terms of the decedent’s estate plan.

The questions include the following:

• Who will administer the estate and what are their duties?
• How will the executor or successor trustee gain access to the decedent’s financial records?
• What is the value of the decedent’s assets as of the date of death?
• Who are the beneficiaries on retirement accounts and what payout options are available?
• How are life insurance claims to be submitted?
• How will debts and administration expenses be paid?
• Who will prepare the decedent’s income tax returns?
• Is an estate tax return necessary and, if so, who will prepare it?
• How will assets be distributed to beneficiaries?