Florida law requires an attorney in the probate proceeding unless the personal representative is the sole interested party. Unfortunately, most non-lawyers would have a very difficult time knowing how to proceed without an attorney. There are books in the public libraries in Florida that are written with the intent of guiding a non-lawyer through the probate process. For individuals who don't have the time to educate themselves in this manner, we've found that probates with only one interested party are often the least expensive and the quickest to complete.

Q. How long should I expect the probate process to take?

Our Summary Administrations average 4-8 weeks. Formal Administrations, without estate taxes due, typically take 4-6 months.

A common exception occurs when a will from another state does not meet the requirements for probate in Florida, either due to insufficient execution at the time of drafting or because the format (e.g., a holographic will) does not comply with Florida law. In these cases, additional requirements may lengthen the time needed to complete the probate process.

Other issues that can either speed up, or delay, a probate proceeding are the ease with which required documentation can be obtained. For example, a certified copy of the death certificate for the decedent of the estate must be submitted with the probate pleadings.  If the heirs happen to have additional certified copies, this can significantly shorten the time needed to obtain one. Also, if the estate is testate ( there is a will), the original will, or an exemplified copy of it as well as exemplified copies of out-of-state probate proceedings, must be obtained. Other potential issues, were applicable, include obtaining the oaths of witnesses to a will, the complete legal descriptions of real property, and signatures from multiple beneficiaries/petitioners. While this list is not exhaustive, difficulty or delays in obtaining any one of these items can add to the time needed to complete the probate proceedings in Florida.

Q. Do I need to hire an attorney whose office is in the same city or county as the decedent?

In uncontested probate proceedings it is uncommon that the client or attorney be required to physically appear in court. This benefits both the the client and the overloaded court system. Where a hearing is required, judges will often accomodate the parties by allowing them to appear by phone. Where a personal appearance by the attorney is required, with the client's permission, local counsel can be reatined to appear on behalf of the client's attorney.

Q. If there is a surviving spouse, is it necessary to go through probate?

If the deceased spouse owned any assets solely in their name (i.e with no designated beneficiaries, or joint owners with rights of survivorship), then yes, a probate administration would likely be required.

Q. What if there is no will?

If the decedent passed away without a properly executed Last Will and Testament, Florida law provides for the descent of the assets. This law is found in Chapter 732 of the Florida Statutes currently states the following (in part):

The intestate share of the surviving spouse is: 
(1)  If there is no surviving lineal descendant of the decedent, the entire intestate estate. 
(2)  If there are surviving lineal descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution. 
(3)  If there are surviving lineal descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows: 
(1)  To the lineal descendants of the decedent. 
(2)  If there is no lineal descendant, to the decedent's father and mother equally, or to the survivor of them. 
(3)  If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters. 
(4)  If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order: 
(a) To the grandfather and grandmother equally, or to the survivor of them. 
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent. 
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above. 
(5)  If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

Q. Where can I learn more about a licensed Florida attorney I'm considering hiring for my case?

A. You can contact the Florida Bar

Q. Where can I get a copy of the Florida Bar's free, on-line consumer pamphlet, Probate in Florida? (Revised 5/06)

A. To download a copy of the pamphlet in Adobe format (*.pdf) Click here