Probate in Florida

Probate in Florida — An Overview

Unlike other areas of law such as civil litigation or criminal defense, uncontested probate is a process that seldom requires the attorney or client to appear in court. Because of this, the work is done almost exclusively from a distance — either by email, mail, or phone — which saves fees and costs for the client. As such, My Florida Probate P.A. handles uncontested probate proceedings throughout the entire state of Florida. It is uncommon for a judge to require an attorney's physical presence at a hearing.

Please Note: The term "testate" means there is a Last Will & Testament. The term "intestate" means there is no Will. The term "decedent" refers to the person who has passed away.

Types of Court Proceedings for Probate in Florida

The following is a brief overview of the types of court proceedings used in Florida to pass title of a decedent's assets to the heirs or beneficiaries.

How the Probate Process Begins in Florida

1. 1
   The Last Will & Testament is deposited with the court.If it hasn't been done, the Will (the original Will with signatures, not a photocopy) is deposited with the Clerk of Court. In Florida, the original Will is permanently held by the Clerk's office. If probate has already been done in another state, a certified copy of the original Will and probate proceedings are requested from the out-of-state court for submission into the Florida probate proceeding.
2. 2
   If there isn't a Will, Florida statutes determine how estate assets are distributed.An estate without a Will is called "intestate." When no Will exists or cannot be found, assets are distributed as follows:

   • A surviving spouse receives the entire estate if the decedent has no surviving lineal descendants.
   • A surviving spouse also receives the entire estate if the decedent's descendants are also descendants of the surviving spouse, and neither had other children.
   • If survived by both a spouse and lineal descendants not also descended from the spouse, the spouse receives one half and the descendants share the balance.
   • If there are lineal descendants and no surviving spouse, the estate is shared by the lineal descendants.
   • If there is no surviving spouse and no lineal descendants, the estate passes to parents, grandparents, and close relatives (siblings, aunts, uncles, etc.).
   • If none of the above heirs survive, the estate passes to the heirs of the decedent's grandparents, equally split between maternal and paternal relatives.
3. 3
   A certified death certificate is filed.A "certified" death certificate is one obtained from and certified by an official source, such as Vital Records, the Department of Health, a county clerk, etc.
4. 4
   A petition is filed with the court to open probate proceedings.If there is a Will, the witness signatures are proven to be valid. Many wills have a "self-proving affidavit" that attests to the signatures. If this isn't present, a court will request additional documentation.
5. 5
   Creditors may be notified and legal notices may be published.A list of all known creditors is important at the outset of probate. A "Notice to Creditors" may be printed in a local newspaper to start the 90-day tolling period for any unknown creditors. Florida grants exemptions from the claims of unsecured creditors (e.g., medical debts, credit cards) against certain assets in the estate — however, if you don't ask the court for these rights, they are not automatically given to you.
6. 6
   Expenses and claims are paid.After all estate expenses and fees are paid or reimbursed to the party that paid them, claims filed by creditors are considered for payment.
7. 7
   Accounting is prepared and assets are distributed.The Personal Representative must account to the beneficiaries and other interested parties regarding how they have managed the estate assets during the administration.
8. 8
   Estate is closed.Pleadings are prepared and signed or served on all interested parties attesting that the administration is complete and asking that the personal representative be discharged and released from further responsibility.

This isn't an all-inclusive list — but it provides a general overview of how the probate process begins in Florida. Since Dawn quotes a flat fee, a great deal of information is gathered during the free initial consultation. This enables her to calculate how much time it will take to complete the case and provide you with a flat-fee quote — at no charge and with no obligation to move forward.

The hiring of a Florida probate attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This site is designed to provide general information only. Content on this site should not be interpreted as specific legal advice, or the formation of an attorney/client relationship.