Who Pays for Probate in Florida?
One of the most common questions Florida probate attorneys are asked by potential clients is “Who pays for probate?” Luckily, Florida law provides a clear answer: the deceased person’s estate pays for probate costs and expenses.
This article will cover the following:
How Florida probate costs are usually paid
What happens if a Florida probate estate does not have enough liquid assets to pay expenses
How a revocable trust may be used to pay probate expenses
How Florida Probate Costs Are Usually Paid
There are a number of different costs in a typical Florida probate, including attorney’s fees, filing fees with the court, postage/service fees if parties need to be sent notice of the proceedings, and publication fees. These can all quickly add up and are understandably a concern for people considering when and even whether to open probate in Florida. To further complicate matters, Florida probate attorneys may bill clients a number of different ways—hourly, flat rate, or the “statutory rate” [1]. But these are all considered expenses of probate administration, and Florida law provides for how they are all paid or reimbursed.
Florida law provides an order of how probate expenses are to be paid, and a personal representative (or petitioner for administration in a summary administration) is obligated to pay them in the order specified in the law [2]. The first to be paid, before anything else, are the “costs, expenses of administration, and compensation of personal representatives and their attorneys fees” [3]. So a personal representative’s court costs, attorney’s fees, service costs, and publication fees are all reimbursed (if the personal representative paid anything out-of-pocket) or paid directly out of the estate before anything else, including funeral costs and unsecured creditors, like credit card companies.
What Happens If a Florida Probate Estate Does Not Have Enough Liquid Assets to Pay Expenses?
Sometimes, the situation arises that an estate has expenses that it needs to pay, and it has assets, but none of the assets are liquid. For example, a probate estate may consist of a home, vehicle, and stocks, while the deceased person’s bank account passed outside of probate due to a payable on death designation. In these cases, the personal representative needs to sell some of the estate’s assets to ensure there is money to pay the expenses. This process is called abatement, and, as with most things, Florida law provides guidance on how this process works. In Florida, a personal representative has to sell the estate’s assets to pay debts in the following order:
Property passing by intestacy (without a will)
Property in the residuary estate
Property not specifically or demonstratively devised
Property specifically or demonstratively devised [4].
The personal representative is only allowed to sell so much of the estate’s assets as are necessary to satisfy the estate’s debts; otherwise, they can get in trouble for unnecessarily interfering with heirs’/beneficiaries’ inheritances.
How a Revocable Trust May Be Used to Pay Probate Expenses
If a probate estate does not have enough assets—including illiquid assets—to pay its debts, but the deceased person was the grantor of a revocable trust, the assets of the deceased person’s revocable trust must be used to settle the estate’s expenses and debts [5]. So, transferring all of your assets into a revocable trust do not help you avoid paying your probate estate’s expenses.
Key Takeaways About Who Pays for Probate in Florida
Florida law has a number of provisions to help ensure that a petitioner or personal representative is either reimbursed from a deceased person’s probate estate or able to use the estate’s assets for the costs and expenses of administering the estate, including:
Paying/reimbursing the costs of administration before any other expenses or debts.
A personal representative can sell a probate estate’s assets to make sure the costs of administration are paid.
If a deceased person had a revocable trust and the probate estate does not have enough assets to pay the costs of administration, the trust will have to pay those costs.
If you need to open probate in Florida, contact a Florida probate attorney to make sure you are not unnecessarily paying costs out of your own pocket. And if you have other questions about Florida probate, check out our Florida Probate FAQ.
[1] § 733.6171(3), Fla. Stat. (2024).
[2] § 733.707(1), Fla. Stat. (2024).
[3] Id.
[4] § 733.805(1), Fla. Stat. (2024).
[5] § 736.05053(1), Fla. Stat. (2024).