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Attorney David Di Pietro| |Probate

Florida Probate Rules And Processes

Probate is a necessary court-supervised legal process used for the verification and administration of an individual’s assets after death. This legal process varies from state-to-state and is necessary to ensure assets are correctly distributed to beneficiaries. This article discusses Florida probate rules and processes.

It’s important to note that information within this page can help guide someone in the right direction and answer general questions; however, this is not a substitute for professional legal advice. Consulting with an attorney for probate is not only advised, but required in the State of Florida (with only one rare exception discussed in the article).

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Probate Definitions

To help readers better understand the context of the article, here are some of the most common terms found within this content and/or used throughout the probate process.

AdministrationThis refers to the legal distribution of someone’s assets in Probate Court after they pass away.

County Clerk of Court – In Florida, most probate hearings are done through the County Clerk of Court in the County in which the decedent resides at the time of their death. This is not to be confused with an actual clerk in the courtroom.

Decedent – A deceased individual

Intestate – When someone dies without a valid will, the State of Florida declares the property of the deceased “intestate.” This will be discussed further in the article.

Probate CourtThis is commonly used to describe the court at which the probate hearing takes place even though most hearings are done at the County Clerk of Court.

Personal Representative – Someone who’s legally appointed to oversee the distribution of assets from a deceased person’s estate.

Beneficiary/Beneficiaries – An individual, or group of individuals who are named in a will/estate plan to receive a certain amount of someone’s assets after this person passes away or becomes unable to manage their assets.

Executor – Someone written in a will or delegated by the court to take care of a deceased individual’s financial obligations.

Notice of Administration –  Formal notice given to beneficiaries and other interested parties by the personal representative. The notice is legally required in Florida and serves the purpose of providing specific details on the probate proceedings.

Probate Litigation – Basically, this is used to describe a legal dispute during the probate process. The most common types of probate disputes include: challenges to wills/trusts, legal disputes over guardianship, etc.

Probate Process Overview

Under Florida law, there are three main types of probate: formal administration, summary administration, and disposition without administration. Below is a description of each of these three kinds of probate proceedings.

Formal Administration – Formal administration is also simply referred to as “formal probate.” As the name suggests, this type of proceeding is the standard form of probate and by far the most common. Formal probate administration takes place in the local Circuit Court of the County in which the decedent resided at the time of their death. The process starts once an individual passes away and the executor of the will (or other interested party) asks to be appointed as personal representative of the decedent’s estate. The beneficiaries named in the estate are then provided notice and given a chance to raise any formal objection(s).

Summary Administration – This form of probate is available when the total value of property/assets going through probate court is valued at $75,000 or less. Summary Administration may also be used when it involves a death that occurred over two years ago (i.e a missing person recently declared dead). The process of this type of administration is initiated by filing a Petition for Summary Administration that must be signed by a surviving spouse and/or beneficiaries. In short, this is an expedited version of probate.

Disposition Without Administration – As the words “without administration” may suggest, this process actually involves skipping the probate hearing entirely due to a specific set of circumstances. It’s important to note, this is only available when the deceased individual did not leave any real estate at all, and the only assets available for probate are valued at less than the amount of final expenses after probate. In short, disposition without administration occurs when a probate hearing is infeasible from a monetary perspective.

Since there’s no formal court hearing for administration, in order to recover assets, a form must be filed called the “Disposition of Personal Property Without Administration.”

Common Questions About Florida Probate

Do all estates require probate?All estates do not go through probate in Florida. If a person passes away without a will or trust and has assets in their name ONLY, then probate is required to distribute property and monies. If property, bank accounts, insurance policies, annuities, 401K plans, and all assets have beneficiaries or joint owners, probate is unnecessary. However, without a will or trust all assets must pass through probate court if no beneficiary or joint owner is named.

What Assets Go Through Probate?In Florida, most assets are required to go through probate; thus, it’s easier to list assets that don’t go through this process. First off, assets that are held within a living trust, may avoid probate. Also, property that is shared through a “joint tenancy,” may also avoid this process. Examples of a joint tenancy include a house that’s owned by a couple, a bank account shared by one or more individuals, etc. There are other assets that may avoid probate under certain circumstances including: life insurance policies, and retirement accounts.

Do I need an attorney?The short answer is yes. In the State of Florida, it’s legally required to have an attorney represent you during a probate hearing in all except in a few rare circumstances.

How long does probate take?This will depend on a variety of factors such as: the size of the estate, whether or not there’s an estate plan, if there’s a dispute with creditor(s) or beneficiaries, the quality of legal counsel, etc. With that said, it’s reasonable to expect the average Florida probate process to take between 6 to 12 months.

What happens to someone’s bank account after they die?If the deceased individual has a beneficiary or Payable on Death (POD) listed on the account or has established a sound estate plan with a trust, their heirs will be able to access the funds. However, In cases where someone dies without the aforementioned provisions in place, the bank will not release the money.

For example, if a family member of the deceased presents a death certificate and has no trust document to prove they are the rightful heir, the bank holds on to the money. In this case, the estate must go through probate to access the funds.

Of course, having a valid will in place and/or hiring experienced legal counsel increases the likelihood of a smooth and prompt hearing.

When Someone Dies Without a Will

Checklist for formal administration of inestate estate with listed Florida probate rules

When someone dies without a valid will in Florida, their assets are declared “intestate.” It’s important to note, that “intestate” does not mean that the property now belongs to the State of Florida. In fact, Florida has a specific process in determining who receives the decedent’s assets in the absence of a valid will. The full process can be found in Chapter 732 of The Florida Statutes. Below is a summary of this process.

  • When the decedent has a surviving spouse and has no living children, grandchildren, parents, etc, then the spouse shall receive the entire estate.
  • If the decedent has a spouse and also has one or more living family members who are family members of the spouse (i.e children), the spouse shall receive the entire estate.
  • If the spouse has additional living immediate family members that are not immediate family of  the deceased individual, the spouse shall receive one-half of the estate with the other half going to the spouse’s descendants.
  • In cases where the decedent was not married at the time of their passing, the immediate family members will receive the entire estate. The assets will then be divided in accordance with Florida law.
  • If the deceased person was not married and also has no living immediate family members, the inheritance will pass to surviving parents of the decedent.
  • In cases where someone dies without any surviving close family members, spouses, or relatives, the State of Florida will search for more remote heirs in accordance with intestate law.
  • As discussed, this is a summarized version of the Florida probate law specific to intestate succession and wills. The full laws are more in-depth and have various exceptions depending on several circumstances. To put this in perspective, here’s an excerpt from section 732.108 of the Florida Statutes regarding adopted children/children born out of wedlock.

“For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent’s family or any prior adoptive parent’s family, except that:

(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent’s family.

(b) Adoption of a child by a natural parent’s spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents…”
(The Florida Legislature, 2018, Adopted persons and persons born out of wedlock.)

As you can see, this process is very in-depth and often causes confusion/disagreements among beneficiaries. As a result, it’s vital to work with a lawyer that’s experienced in Florida probate rules when it comes to issues involving probate court/intestate succession.

Flowchart representation of Florida intestacy laws for probate without a will. The infographic shows which family member receives the estate starting with the spouse down through the entire paternal and maternal family of the decedent.

Disputes in Probate Court

Ideally, the final wishes of the decedent are written in a will and agreed upon among beneficiaries; however, this isn’t always the case. As previously discussed, the process becomes more complex when someone dies without a will, or there’s a legal dispute such as a contested will, or challenges to a trust.

In Florida, wills may be contested on the grounds of validity (i.e the will wasn’t properly executed). Wills may also be challenged when the person drafting/changing the will does not have legal mental capacity to understand the impact of these documents. These are only a couple examples of legal disputes over wills; the facts and circumstances differ for each case and an attorney is required for the litigation of wills in court.

Similar to a will, a trust may also be challenged in court. Legal disputes over trusts may include: lack of mental capacity by the settlor, undue influence over the settlor, improper witnessing/execution of the trust, and a multitude of other reasons. Trust disputes are even more complex than wills; thus, legal counsel is absolutely necessary in these scenarios.

These types of cases are also done through probate; however, they’re commonly referred to as “probate litigation,” as opposed to “probate administration.”

Summary Of Florida Probate Rules

When it comes to probate in Florida, there are three main types of administration. This includes formal administration, summary administration, and the rare occurrence of disposition without administration. Formal and summary administration account for almost all probate cases throughout the state. In these cases, legal representation is not only advised, but required by law. Legal representation is also required when someone dies without a will, or when there’s a dispute(s) over wills, trusts, guardianship.

If you would like to learn more about Florida probate rules, or have an issue that pertains to probate administration/litigation, anywhere within the state, call the number below for a free consultation with an experienced lawyer today.

954-712-3070 (Local)
800-712-8462 (Toll free)

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