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Probate Law

PROBATE is the judicial process whereby a Will is “proved” in a court and accepted as a valid document that is the true intent of a decedent. This is considered a “Testate” estate.

The PROBATE process also occurs when an individual dies without a Will. In that case, the Florida Statutes (the laws of the State) dictate the terms of distribution of a decedent’s property. This is considered an “Intestate” estate.

The granting of PROBATE is the first step in the legal process of administering the estate of a decedent, in order to resolve all claims and distribute the decedent’s property under a will (or by statute). The probate court decides the legal validity of the will, and with or without a will, the court grants its approval to act to a person known as the personal representative (“executor” in other states).

The “probated” will, or statutory provisions, then becomes a legal roadmap that may be enforced by the personal representative, upon issuance by the court of the Letters of Administration.

WITH THE ADVENT OF E-FILING ANY UNCONTESTED PROBATE MATTER CAN BE HANDLED IN ANY OF FLORIDA’S 67 COUNTIES WITHOUT THE NEED FOR TRAVEL OR APPEARANCE AT HEARINGS.

What is a Probate Asset?

If property owned by a decedent is not automatically distributed, or “given by title”, to another individual, through joint ownership, beneficiary designation, or by operation of law, it is considered a probate asset. Assets titled in the name of a trust are not probate assets.

Another form of “joint” ownership in Florida is “tenants by the entireties”, which describes the relationship between and husband and wife.

Who can serve as the Personal Representative?

Testate

  • Individual named or nominated in will;
  • Alternate named if initial individual unable to serve;
  • Person selected by majority of beneficiaries to estate.

Intestate (Florida Statutes)

  • Spouse;
  • Person selected by majority of heirs;
  • Heir nearest in degree

IF PARTIES CANNOT AGREE ON INDIVIDUAL, COURT MAY APPOINT AN INDEPENDENT PERSON TO ACT.

Who cannot serve as the Personal Representative?

  • Individual convicted of a felony;
  • Not mentally or physically able to perform duties;
  • Under the age of 18 years.

Duties of the Personal Representative:

The personal representative is tasked to handle the technical aspects of a probate administration, including:

  • Marshaling of decedent’s property and preparing an inventory of the assets;
  • Creditors must be notified and legal notices published;
  • The personal representative must be guided in how and when to distribute assets and how to take creditors' rights into account;
  • Homestead property, which follows its own set of unique rules, must be dealt with separately from other assets;
  • Determination of property ownership, whether it would pass automatically to a surviving joint owner or beneficiary separately from any will, or if the title is held as tenants in common (separate interests), in which case it would be considered a probate asset;
  • There are time factors involved in filing and objecting to claims against the estate;
  • There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
  • Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or merely to pay debts;
  • Estate, gift, income or inheritance taxes must be considered if the estate exceeds certain thresholds.'The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently;
  • Understand and abide by the fiduciary duties, such as a duty to secure and protect assets and to treat all beneficiaries equally; and 
  • Obligation to report or account to beneficiaries.

Most courts in Florida require the posting of a surety bond or restricted depository account when a personal representative is appointed. This step discourages a personal representative from acting improperly to the detriment of creditors and beneficiaries.

Additionally, because Florida allows for the e-filing of documents to administer an estate, no appearance at court is required by the nominated personal representative, the beneficiaries, etc. It is only when a probate proceeding is contested that appearances are anticipated.