I. Probate Assets/ Non-Probate Assets:
1. The first step is to determine whether an “asset” is a Probate asset.
Individuals pass away with many different types of assets. Probate assets are those that are
individually owned by the decedent. Non-Probate assets do not need to be included in the Probate
process in order to transfer ownership or benefits.
2. Different types of Non-Probate assets include:
• IRAs, CDs, or bank accounts that name beneficiaries do not need to be
included in the Probate process.
• Bank or brokerage accounts with an ITF (in trust for) designation, POD
(payable on death) registration, or TOD (transfer of death) that name a beneficiary are not included
in the Probate process.
• Real property held in joint names by spouses is not a Probate asset; nor is
property held as joint tenants by right of survivorship.
• Assets titled in a trust are not Probate assets (ie: real estate, bank accounts
or brokerage accounts).
• Homestead- the exempt homestead is a non-Probate asset if there is a
surviving spouse, minor child or heir at law.
II. The Probate Process.
1. The start of Probate begins with the initial consultation with an attorney.
The attorney will gather certain documentation such as the original will, any codicils, death
certificates and a list of assets and how they are titled. The attorney will also ask for a list of any
outstanding debts or expenses of the decedent, such as funeral expenses or medical bills. This is
also a good time to review prior income tax returns to determine whether all the assets have been
2. The attorney prepares the Petition for Administration and files that
document and other associated documents with the Probate Court. These documents are signed
by the named personal representative and the attorney. Upon filing the initial documentation with
the Probate Court, there is typically a thirty day wait time until the Letters of Administration are
issued by the Court.
3. The next step is a receipt from the Court that the Petition and the associated
documents have been accepted by the Court. The Court then issues Letters of Administration
allowing the named personal representative to essentially step into the shoes of the decedent and
gather assets, determine ownership, apply for an EIN to open an estate account, and to determine
which assets are Probate assets and non-Probate assets. The Letters of Administration is the
Personal Representative’s (i.e. the executor) authority.
4. The Personal Representative then publishes a Notice to Creditors. It is
required that a Creditor Notice be published in a newspaper of local circulation once per week, for
two consecutive weeks. This allows for potential creditors to be noticed in reference to the
decedent’s death. Creditors have a limited amount of time to file their claim against the estate
(typically three months from the date Notice is first published). During this time period, the
Personal Representative and their attorney make a list of potential creditors and known creditors,
then prepare an inventory to be filed with the Court. This is also a time for the Personal
Representative to make a list of non-Probate assets and determine their beneficiaries and assist
with transferring those assets to the beneficiaries.
5. Closing of the Creditor Period. The Creditor Period extends for three
months after the date of first publication. At the conclusion of that time, if there are no valid claims
filed, the Personal Representative can begin the process of closing the estate. If there are claims
filed, those creditors will need to be dealt with prior to closing the estate.
6. Next, the Personal Representative will file a petition to determine
homestead status and handles the transfer of those assets that are non-Probate or received orders
from the Court in reference to non-Probate assets, including the homestead.
7. Income tax returns for the decedent will need to be filed. This usually
requires a filing of the final income tax return (Form 1040) for the decedent (for the year of death)
and the determination of whether there will be fiduciary income tax returns for the estate. The
Personal Representative, with the consult of the attorney and CPA, has the ability to determine
whether a calendar year end is appropriate, or a fiscal year end is appropriate. Normally, there are
one or two 1041 fiduciary income tax returns filed.
8. The next step is preparing an accounting for the beneficiaries. Once a
Personal Representative has been appointed and after they received the letters of administration,
they begin managing the assets, paying expenses, debts and creditors. They are required to prepare
and file a final accounting for all beneficiaries. An accounting can be expensive. Many times,
beneficiaries will waive the accounting if they have knowledge of the transactions of the Personal
Representative. A waiver of final accounting will save time and money for the estate and its
9. The next step is the distribution of assets pursuant to the plan of distribution.
This is where the Personal Representative distributes assets and obtains releases and receipts from
each of the beneficiaries for their respective share.
10. The final stage is getting the order of discharge. A petition for discharge is
filed and usually within thirty (30) days, the Judge signs the order of discharge releasing the
Personal Representative from all liability and responsibility of the estate and allows for closure of
the estate, as far the Probate Court is concerned.
The probate process takes at least 7 months, from start to finish, to complete. In most
cases, it may take up to a year, depending on whether there are disagreements between
III. In summary, the steps in a Florida Probate are as follows:
1. Deposit original Will and record original short-form death certificate with
2. File a Petition for Administration.
3. The Court determines the validity of the Will and appoints a Personal
4. The Personal Representative, if necessary, will file a petition to open a safe
5. The Personal Representative gains control of all the decedent’s assets
(Probate and non-Probate).
6. The Personal Representative publishes a Notice to Creditors.
7. The Personal Representative will prepare an inventory.
8. The Personal Representative will file the decedent’s final 1040 income tax
return, plus any fiduciary income tax returns during the administration of the estate. (Note: you
may need to get a Federal Employer Identification Number (FEIN) to replace the decedent’s social
9. The Personal Representative will prepare a final accounting.
10. The Personal Representative will file the Petition for Discharge.
11. The Court issues an Order of Discharge.
12. The Personal Representative makes final distributions.
IV. Note: Technically, until the taxes are paid, and all creditors have been paid or
provided for, there should be NO DISTRIBUTIONS to beneficiaries unless ordered by the Court.
V. COMPENSATION. The Personal Representative and their Attorney are entitled
to compensation. In most cases, the amount is controlled by Florida Statutes 733.617 and