Probate

Probate is the court process for passing ownership of a deceased person’s assets to the beneficiaries. It is also necessary to wind up the decedent’s financial affairs and make sure all the decedent’s creditors are paid.

Probate assets are property (real and personal) that the decedent owned in his or her sole name on the date of death. They do not include bank or investment accounts that are held jointly with right of survivorship with another individual or accounts that are payable or transferable on death to another. They also do not include a life insurance policy or retirement account that is payable to a specific beneficiary.

There are two types of probate administration under Florida law: formal administration and summary administration. There is also an informal proceeding called “Disposition of Personal Property Without Administration.” This applies only in limited circumstances when the amount of the assets is very small.

In a formal probate administration, the required documents are filed with the Clerk of the circuit court in the county where the decedent lived at the time of his or her death. The Circuit Court judge assigned to the case signs all Probate Orders and presides over hearings in the matter. If there is a Will, the judge approves the Will and appoints the Personal Representative named in the Will. If there is no Will (this is called “intestacy”), the judge appoints the surviving spouse or another family member to be the Personal Representative.

The Personal Representative is in charge of the administration of the decedent’s probate estate and has a legal duty to administer the probate estate pursuant to Florida law. In most cases the Personal Representative will be required to be represented by an Attorney who will provide legal advice throughout the process. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be unfamiliar to non-attorneys. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida is not more than $75,000, and if the decedent’s debts are paid. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

The length of time it takes to complete the probate process depends on the facts of each case; some probate administrations take longer than others. For example, the personal representative may need to sell real estate prior to settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

Authored by Debra Simms
Reviewed by Carolyn Landon