Probate Law: Frequently asked question

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1.    What is Probate?
Probate is the Court-supervised process to identify and gather the decedent's assets, resolve creditor claims, pay taxes and distribute to the funds to the beneficiaries.   During Probate the Court acts as a big brother supervising all of the transfer of assets.

2.    Are there different types of Probates?
Yes, under the Florida Probate statutes there are both a Formal Administration and Summary Administration.  Florida law also establishes a nonadministration proceeding called "Disposition of Personal Property Without Administration.”

3.    The difference between a Formal Administration & Summary Administration?
Formal Administration is the most commonly used method to Probate an estate in Florida and encompasses more requirements to close an estate.  A Summary Administration is an abbreviated method of its counter part and results in quicker Probate proceedings.  A Summary Administration can not be filed if the decedent died within the last two years or if the estate exceeds $75,000.

A personal representative is appointed based on who is named in the decedents valid will admitted to Probate and whether that individual(s) qualifies to serve as personal representative or based on order of priority based on Florida intestate laws.

4.  How long is the Probate process?
Every Florida Probate case has different issues that can cause a large variance on how long it takes to close an estate.  A good example is if real estate must be sold before the estate can close, which takes several months alone.  The Probate judge will want the Probate file to close within one year of filing.  To give you a prospective of the timing, a notice to creditors must be published for a period of three months.  This requirement alone draws the Probate case out for several months. 

5. Why is Probate required?
Probate is needed to finish up the affairs of the decedent and properly retitle the assets to whom they should pass. Probate laws have been in force in Florida since 1845. Florida statutes have default provisions also known as the intestate rules which apply if the decedent dies without leaving a valid will and has property in their sole name. The decedent has the authority to make decisions regarding their property that is in their sole name by leaving a valid will.

6.  Is a Probate required to be filed if the decedent had a will?
Yes.  It is a common misconception if the decedent had a will drafted and executed, then their estate would avoid Probate.  This is absolutely untrue.  The fact that the decedent did or did not have a will has no bearing on whether a Probate needs to be filed. 

7. Is an attorney required for all Probate administration in Florida?
Yes, Florida law almost always requires an attorney be involved.  Florida Probate Rules 5.030 requires an attorney represent the Personal Representative/Estate for nearly all Probate matters.  An attorney is not required when there is a proceeding with disposition of personal property without administration.
 
Even with the most basic Probate case there will be statutory requirements and issues where the Court requires an attorney to be part of the process to assist in advising the personal representative of rights, duties, and obligations they have to the estate and beneficiaries. 

8.  What is a Personal Representative? 
Many states call this person the Executor however in Florida they are called Personal Representatives.  The Personal Representative is the person who will help manage the estate and aid in executing the requirements of the Florida Probate Statutes and Rules.  The Personal Representative will identify, gather, value, and safeguard the estate assets and then distribute them at the end of the case. 

9.   Who serves as the personal representative?
The will directs whom the decedent prefers to serve as the personal representative, however they must accept this role and the Probate judge must order their appointment before they are legally hold that position.  The mere provision in the will that recites who will serve as personal representative is only a preference of the decedent and not binding. 

If there is no will, then the Florida Intestacy Statues to determine who will serve as the personal representative.

10.  What does the Personal Representative do?
            Below you will find a list of some of the tasks required to perform by the personal representative:
Give notice of the administration of the estate, publish a “Notice to Creditors,” sign a oath they fulfill the legal requirements for a personal representative, post bond, search for heirs, search for creditors, obtain waivers, files taxes, object to invalid claims, defend suits against the estate, hire professionals to assist in the Probate such as realtors, accounts, financial advisors, appraisers, distribute the assets, petition to close the estate.

11.  Can a Personal Representative receive a fee for serving?
Yes, a personal representative in a Florida estate may receive a fee as set by the Florida Statutes.  The personal representative can also waiver the fee if they so choose.

12.  If a will states a particular attorney, is this binding on the personal representative? 
No the personal representative can choose the attorney they prefer.  The statement in will is only a nonbinding request by the decedent.

13. Are all decedent’s assets subject to Probate? 
No, only assets that were solely in the decedents name at their death would be subjected to Florida Probate.  Assets that were jointly held, transferable/payable on death, or have right of survivorship are not subjected to the Probate proceedings. 
 
14. Who receives the property that was left in decedent’s name if there is no Will?
If there was no will, then the Florida Probate laws of intestacy will determine who will receive the assets of the estate.  There are many factors that determine who will take under the Florida intestate statutes which include, if the decedent was survived by: a spouse, divorced, minor children, adult children, deceased children with surviving offspring,  type of asset, if there is real property involved and if it was homestead property, etc.
 
15.  Who is involved in the Probate process?
Nearly all Probates will involve the people below.  Depending on the issues there could be more people involved.
-Attorney for the Personal Representative
-Personal Representative
-Beneficiaries (spouse, children, siblings, parents, charities, friends)
-Clerk of the Circuit Court
-Circuit Court Judge.
-Claimants (people or business claiming the decedent owed them money)
-Florida Department of Revenue
-Internal Revenue Service
-Local Newspaper Publication

16.  What are letters of administration?
This is a document signed by the Probate judge that appoints the authority to the personal representative to act on behalf the estate so they can process the Probate.  The letters of administration will allow the personal representative to open and close bank or financial accounts in the decedent’s name. 
 
17. Does someone oversee the Probate Administration?
The local circuit Court judge will oversee the Probate administration and they will require that all interested parties be noticed of proceedings involving the Probate.  The Probate judge will hear all motions and petitions regarding the estate make the following rulings: accept the will to Probate, appoint the personal representative, issue letters of administration, order determining homestead, order approving sale of property, order striking creditor claims, order  posting bond, order of discharge.

18. Can a Will be contested and what are common reasons for contesting a Florida Will?
Yes, a will can be contested and litigated for various reasons such as lack of capacity, undue influence, and fraud.  Keep in mind that provisions in wills that state it can not be challenged are not enforceable in Florida.

Probate Law Resources

Twelfth Judicial Circuit
Florida Statutes

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