Probate

Probate Administration and Litigation

Probate is a complicated legal process that involves attorneys, judges and sometimes fighting family members. Fortunately for you, our goal is to make the probate process as simple and as easy as possible. Chances are you want to do a little research on probate before you speak with or hire a probate attorney. We get that and think that is a good decision on your part. This page is dedicated to those of you who want the nuts and bolts of probate but are not wanting to learn everything there is to know about probate or become a probate attorney. This page will likely not answer every single question you have about probate but in our experience, it should give you enough information to make you feel comfortable to ask necessary questions when you speak with our probate attorney. We would encourage you to read this page before calling us because we want you to make an informed decision. 

So, feel free to read this page and then give us a call at 305-456-3255 when you are ready to schedule a call with a probate attorney.

Talk to you soon!


Quick Links  

What is Probate?

When is Probate Necessary?

What if the Person Who Died had a Last Will and Testament?

Who is the Personal Representative and What Do They Do?

How Long Does Probate Take?

How Much Does Probate Cost?


What is Probate?

Probate is a legal process that involves courts, judges and attorneys and takes place after a person has died. The judge overseeing the probate case will review anything that a person may have owned and then determine which heirs and beneficiaries will receive that person’s assets. For example, if John owned a house and had some money in a bank account, a probate judge will determine who will receive John’s house and money.

When is Probate Necessary?

Generally, probate is necessary if the person who died had assets that need to be distributed to his or her heirs and beneficiaries. Some of the most common examples are when the person died owning a home and a bank account or insurance policy. If the person who died was the only one on the title of the home, then chances are probate is necessary. If they are the only one on the bank account, then probate is also likely necessary. If he or she had some sort of life insurance policy and the person named as the beneficiary has died, then probate is likely necessary as well. If you are a potential heir or beneficiary and you are just curious if probate is necessary, please feel free to call us at 305-456-3255.

What if the Person Who Died had a Last Will and Testament?

A common misconception is that a Last Will and Testament, also known as a “Will”, is that by having a Will, you can avoid probate. Unfortunately, this is not the case. So, if you know that a person has died and they had a Will which names you as the Personal Representative or Executor, and it says that you are entitled to anything he or she may have had, chances are you will still need to open a probate with the court in the county where the person died or had assets.

Who is the Personal Representative and What Do They Do?

The Personal Representative is the person authorized by the court to handle the affairs for the individual who has died. They are generally the person who will hire the probate attorney, they will sign the documents that must be filed with the court, they may have to go to court if necessary, they close out any bank accounts and they sign the closing statements for the sale of any property. Basically, this is the person in charge of making sure the assets are distributed and everything is taken care of properly.

Generally, if there is a Will, it will name who the Decedent (the person who died), chose to be Personal Representative. If there is no Will, then the court will select the Personal Representative. In Florida, the surviving spouse, if any, has preference to serve as Personal Representative. If there is not surviving spouse, then the heirs may select one. If the heirs cannot agree, then the court may select the Personal Representative. Florida Statute 733.301  outlines who has preference to be Personal Representative.

In Florida, generally anyone can serve as Personal Representative so long as they are not a convicted felon.

Also, some states use the term Executor or Administrator, though Florida calls this person the Personal Representative, but they all mean the same thing.

And lastly it is very important to note that a person does not actually become the Personal Representative until the judge signs two documents: 1) Order Appointing Personal Representative and 2) Letters of Administration. Even if there is a Will which names a Personal Representative, the person does not become the Personal Representative until the judge signs those documents.

How Long Does Probate Take?

This is probably one of the most frequently asked questions we get asked. The length of time can vary on a case by case basis. Even if you believe this will be a “simple” case, certain issues can, and often do arise. Trust us on this one. That being said, we will give you a ballpark idea of how long the entire process will take.

If the person died over two years prior to you starting the probate, then chances are the probate will take between two to four months from start to finish. 

If the person died within two years of you starting the probate, most likely the probate will take between five to seven months from start to finish.

The difference has to do with a required creditor period. If the person died within two years of you starting the probate, then Florida law requires a 90-day period from when the Personal Representative was appointed for creditors to make a claim on the estate. For example, if the person died and had overdue credit card bills or hospital bills then those creditors have a 90-day window after the judge signs the Order Appointing Personal Representative and Letters of Administration to serve its claim on the estate (or the attorney handling the probate). The court will generally not allow the attorney / Personal Representative to make any distributions to the beneficiaries during that time period and will require that the probate remain open until the end of that “creditor period.”

These are just general estimates based on our experience. If there are fighting siblings, lost Wills, people in other countries, then sometimes it can take longer.

How Much Does Probate Cost?

This is the second most frequently asked question we get asked. Just like length of time, probate costs can vary. Generally, probate attorneys in Florida can charge one of four ways: 1) Hourly Fees 2) Flat Fees 3) Statutory Fees 4) A Combination the First Three.

Hourly Fees: Hourly fees work like this: You will pay an upfront retainer to the attorney; let’s say $3,000.00. That money is put into the law firm’s Trust Account. If you hire the law firm on Monday and they do not work on your case and you call them on Tuesday, and say you want your money back, then the law firm would be obligated to return the entire $3,000.00 back to you (unless part of it was deemed “non-refundable”). If however, the attorney assigned to your case has an hourly rate of $400.00 and he or she does one hour of work on Monday night, and you call the law firm on Tuesday and ask for your money back, then the law firm would only be obligated to return $2,600.00 to you because they had earned $400.00.

Flat Fees: Flat fees are generally a pre-determined price set at the outset of you hiring the law firm. This fee may include the attorneys fee and costs, or it may just include the fee. For example, the law firm may tell you that the “fee” is $5,000.00 but “costs” are separate. Or, the law firm may say that the fee is $6,000.00 and that this includes all fees and costs. It is a good idea to review the Engagement Letter / Agreement for Representation / Retainer Agreement prior to signing it so that you know what all is included in the price you were quoted. You and the law firm want to make sure you fully understand what is included for that fee. For example, if the case becomes litigated, does that change the price? If your law firm does not explain that to you, you should ask!

Statutory Fees: Florida Statute 733.6171 allows attorneys to charge pre-set percentages based on the size of the estate. For example, if the estate is valued at 1.1 million dollars, then the attorney could charge a rate of 2.5 percent or $27,500.00. Depending on the nature of the probate, the statutory fee could be fair or unfair to either the attorney or the person hiring the attorney. Florida says that these pre-determined percentages are viewed as “reasonable” but there are other factors that are to be taken into consideration such as a will contest or proceeding for determination of beneficiaries. Again, it is a good idea to understand what will be involved in your particular probate as to whether or not being charged statutory fees make sense.

Combination: It is not uncommon for there to be a combination of the above described methods of payment. For example, it may be determined that you pay a flat fee but if the case turns litigated, then you begin paying hourly. 

The method of how you pay also depends on a law firm by law firm basis. Some attorneys require the entire amount of front and some elect to receive payment at the end of the probate and others may have a combination and do some up front and some at the end.

The most important thing for you to understand is that not all law firms are alike and not all law firms offer the same level of service and quality of work. There will certainly be law firms that are “cheaper” and others that are more “expensive.” Like most things, you get what you pay for. We recommend to potential clients that are “price shopping” that they ask all law firms they speak with the same things. For example, one law firm may quote you a lower price, but it may not be offering the same bells and whistles that the other law firm was offering. 

You would not go to a Mercedes dealership expecting to pay Honda prices just like you would not go to Honda expecting to pay Mercedes’ prices. Both Honda and Mercedes offer cars but the quality and features in each car are radically different. One may not necessarily be better or worse than the other, but they are different.

Our recommendation is that before you go looking for the “cheapest”, make sure you know what you are actually looking for first. Some things to take into consideration and to ask the law firm you are interviewing are things such as:

  1. Do you specialize in probate?
  2. Do you only do probate?
  3. Do you do other areas of law?
  4. How many successful probate administrations has your firm done?
  5. Does your firm do probate litigation?
  6. Can I speak with other happy clients?
  7. How often will I receive updates on my case?
  8. What is actually included in the price you are giving me? What is not included?
  9. How many people will be working on my case at any given time?
  10. What kind of law firm culture do you have? Will you treat me like family or just another client?
  11. Why do you do what you do?

Those are just a few questions you should ask!