Probate's FAQ?

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Q1:   When is probate required in Florida?

If a person passes away and has assets in their name, without a beneficiary designation, then probate is likely required to distribute property and monies.

Q2:   Do I need an original will?

Yes,  When you make an application for probate to the Court, you must submit the original will to be proved.

Q3:   What if I can't find the original will?

If the original will cannot be found, a copy can be admitted to probate under certain circumstances.  If the court finds sufficient, the court may admit the will copy and the estate will be probated.

Q4:   What does court-supervised process mean?

The court-supervised process simply means a legal process by which the court oversees the settlement of an estate.  The court validates the will, appoints the executor, rules on the value of the estate, authorizes identification and payment to creditors and distribution to beneficiaries pursuant to Florida law. 

Q5:   Who is involved in the probate process?

Probate Court, Personal Representative (Executor), attorney providing legal services to the personal representative, beneficiaries, creditors, financial institutions, and the Internal Revenue Service.

Q6:   Are there different types of probate cases?

Yes there are three types of probate administration under Florida law.

Formal Administration: This type of probate case is the most common form, and generally the benchmark for administering an estate.  A personal representative is appointed by the Court, and potential creditors are provided approximately 3 months to make claims against the estate, or be forever barred.

Summary Administration.  This type of probate is generally available only if the value of the estate subject to probate in Florida (less property, which is exempt from the claims of creditors; i.e. homestead real property) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object, or the deceased has been dead for over two years.  There is no personal representative appointed, but you are limited to what can be done with the estate. This process generally is shorter than Formal Administration.

Disposition of Personal Property Without Administration. This is a non-court supervised administration proceeding but this type only applies in limited circumstances and the estate cannot exceed $6,000.

Q7:   What if the decedent had property outside of the state of Florida?

Likely a probate will need to be opened in all states that the decedent owned property. This process generally requires attorneys from different states working together with the common goal to completely administer the estate.

Q8:   What does it mean to be a personal representative?

The personal representative has a legal duty to administer the probate estate according to Florida law.  The personal representative has a fiduciary duty to ensure that all delegated responsibilities defined in Florida law are carried out in accordance with all laws and regulations or they may be liable to the beneficiaries for any harm they may suffer.

Q9:   How does a personal representative get appointed?

If the deceased had a will, the Court will appoint the person or institution named by the deceased in the will to be the personal representative as long as they are legally qualified to serve.

If the deceased did not have a will, the surviving spouse has the first right to be appointed by the Court to serve as a personal representative.   If the deceased was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the deceased heirs will have the second right to be appointed as personal representative.  If the heirs cannot agree, the Court will appoint a personal representative after a hearing is held for that purpose.

A personal representative is the person, bank, or trust company appointed by the Court to be in charge of the administration of the deceased probate estate.

Q10:   What are some issues in probate that are generally expected?

The most common issues in probate are generally centered around the length of time probate takes.  Delays can occur if there is no will or an original will cannot be found.  Depending on the size of the estate it may take time to identify all the assets and the number of creditors involved.  In addition, creditors once notified have a three-month period to make claims on an estate. Having an attorney that lacks experience with probate matters can delay the process even further. Other issues may involve beneficiaries contesting the will or locating the beneficiaries.

Q11:   Why do I need an attorney?

Most of the time, having a probate attorney to represent the estate is required by Florida law. However, having an experienced probate attorney by your side to promptly navigate the estate administration and voluminous FL probate laws and regulations can ease a very stressful situation, and provide you peace of mind.

An experienced probate attorney can ensure that you meet the many deadlines implemented by Florida law, protect the estate against invalid creditor claims, and administer the entire estate in a timely manner. A personal representative can be held responsible by beneficiaries if the estate is mismanaged and may be held liable to the beneficiaries for any harm they may suffer.  An experienced attorney is able to provide legal services with the knowledge of all Florida laws and rules pertaining to probate.   

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