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Florida Probate Explained

Probate is the legal process whereby a court appointed Personal Representative determines the names of all creditors of the deceased person and then distributes the estate assets, after all valid creditor claims have been paid, to the beneficiaries set forth in your will (if there is no will, then the assets of the estate are distributed according to Florida's intestacy law). The Probate estate assets are any assets a person owns in their name alone at the time of their death. Examples of probate assets include real estate and personal property (like jewelry, art work and furniture), cash, safe deposit box contents and life insurance.

The goal of Probate is to:

  • Verify the validity of the deceased person’s Last Will And Testament
  • Identify and inventory the deceased person's property
  • Have the estate property appraised
  • Operate the business of the deceased person in their absence
  • Pay the deceased person’s remaining debts and taxes
  • Distribute the deceased person’s property to the heirs

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Is Probate always needed?

Probate is not always necessary. If the deceased person owned property or accounts with another person, then the surviving co-owner will automatically own that property or bank account. If the deceased person leaves very few assets (personal belongings), then these items can be distributed among rightful beneficiaries with minimal or no supervision of the court.

Probate is sometimes required to:

  • Clear title to land, stocks and bonds, or large bank or savings and loan accounts that were held in the name of the deceased person only, and retitle these assets in the names of the rightful beneficiaries.
  • Collect debts owed to the deceased person.
  • Pursue a personal injury or wrongful death claim
  • Settle a dispute between people who claim they are entitled to assets of the deceased person.
  • Resolve any disputes about the validity of the deceased person’s will.

How are probate proceedings initiated?

The Personal Representative named in the deceased person’s will may initiate the probate proceedings. If there is no will, or the deceased individual did not name a Personal Representative, then the probate court will select a party to act as the Personal Representative of the will. The Personal Representative is usually the deceased individual’s closest relative or the person selected by the majority of interested parties. However, Florida probate law determines the order of preference.

The Personal Representative is granted court-appointed authority to perform certain duties, including:

  • Filing the will with the probate court in the county where the deceased person lived
  • Proving the validity of the will
  • Providing a list of the deceased person’s known creditors
  • Preparing an Inventory of the deceased person’s property
  • Noticing all interested parties, including beneficiaries of the estate
  • Giving proper notice of death by filing a notice in a local news publication
  • Contacting the appropriate taxing authorities

Reasons To Avoid Probate

Depending on your life circumstances, it is sometimes wise to set up a revocable living trust that will enable you to avoid probate. The two most common reasons for doing so are:

  • Probate can sometimes tie up assets for several months, sometimes even years
  • Probate fees can take up to 3% of an estate's value

Avoiding Probate with a Revocable Trust

If you would like to avoid the probate process, an experienced lawyer can create a revocable living trust for your assets so your beneficiaries will not have to probate your will. A revocable living trust has many advantages. It allows you to designate who can make decisions for you if you become ill or incapacitated. You can appoint yourself as the trustee when you are well and a successor trustee if you become incapacitated. This makes it much easier to transfer money to your beneficiaries without going through probate court.

For example, if your spouse or life partner is in a serious car accident or develops a serious illness and is totally incapacitated and unable to work, having a will is not going to help you at all because your spouse is still alive. If you can’t pay the mortgage from your salary alone, you will not be able to sell your property if you own the home with joint-tenancy with right of survivorship. When you go to sell the property, it takes two signatures to be able to sell it if you own it in both names. If you had a revocable living trust that had an incapacity clause in it, it would solve this problem.

Do you need a probate lawyer?

Probate proceedings can be difficult to navigate and understand, especially while dealing with the loss of a loved one. In most cases, Florida law requires a lawyer to assist with a probate administration (a lawyer is required in a formal administration, but not in a summary administration). If you are involved in a probate proceeding, it would be wise to consult with an experienced Broward County Probate lawyer who can guide you through the probate process, inform you of your rights, and protect your interests.

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