Probate - Estates

What is probate?

Probate is a legal process through which the assets of a deceased person are properly distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are paid and proper distribution is made.

Are there different types of probate proceedings depending on the size of the estate?

Yes, there are three (3) basic types of proceedings for administering the decedent's estate:

  • Petition For Administration (Formal)

This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the representative will act is determined by the court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.

  • Petition For Summary Administration

This type of proceeding is used when the value of the entire estate does not exceed $75,000 or the decedent has been deceased over two years.

  • Disposition of Personal Property Without Administration

This type of proceeding is used to request the release of assets of the deceased up to $6,000.00 or reasonable funeral expenses to the person who paid the final expenses; such as funeral bills or medical bills for the last 60 days. These assets cannot include real property.

The following paperwork is required for filing a Disposition of Personal Property Without Administration:

    • If the decedent has a will, it must be filed with the Clerk of Court for safekeeping within ten days of the notice of death;
    • An itemized, paid funeral bill;
    • Paid receipts for any medical expenses incurred sixty days prior to death;
    • A statement regarding the type of asset to be released;
    • Identification of the person filing;
    • The filing fee.

After this information is filed, the Court will enter an Order either allowing or disallowing the release of assets.

How are probate proceedings initiated?

Probate proceedings are initiated with the filing of a petition by an interested person asking to be appointed personal representative or to distribute property depending on size and complexity of property. Most petitions are normally prepared by an attorney. The personal representative will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries and they are discharged by the court.

Can I represent myself?

Yes, but you should know the law. However, it is important and typically required that the personal representative of an Estate have legal representation.

What is a will? When and where should it be filed?

A will is a document executed by a person to dispose of his or her property after his or her death. It generally names a personal representative to administer the estate. After the death of the person, the custodian of the will must deposit the original will with the Clerk of the Circuit Court, within ten (10) days after receiving information that the person is deceased. The custodian should supply the person's date of death or the last four digits of the person's social security number to the Clerk upon deposit of the original will, if this information is available.

Do you need an attorney to deposit a will?

No, an attorney is not necessary to deposit the will with the Clerk of the Circuit Court. However, you may want to consult with an attorney before filing so that he or she may determine whether Probate proceedings will be necessary. There is no fee to deposit a will. If a receipt is requested, the fee is $7.00.

What happens if a person dies and has left no will?

The property will be distributed in accordance with Florida law.

What happens if there is a will filed but no personal representative has been named?

It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate if there are assets in the decedent's name alone.

My spouse has died. Do I have to go through probate just to gain access to the checking account?

Yes, if the account is held solely in the name of an individual who has died. Any asset, including a checking account that is frozen at the time of death, cannot be made available to you without some sort of court order.

What if the account is in both our names?

No. In that case, the checking account (and all assets owned in both your names) passes to you by rights of survivorship. However, you should record a certified copy of the death certificate in the Official Records of the county which does not include the cause of death section.

Do I get the death certificate from you?

No. Death certificates must be obtained from the Health Department of the county where the decedent died.