Frequently asked questions.
The basics about probate.

What is probate?

Probate is the legal process where a deceased person's assets are properly distributed to heirs and beneficiaries. It is overseen by the courts to ensure that debts are paid and that the distribution of assets is done properly.

What are assets in probate?

In most cases these are assets that are in the descendant's sole name at time of death which contain no provision for automatic succession. This may include:

• Bank accounts
• Life insurance policies
• Real estate
• Vehicles

What does "probating a will" mean?

The term encompasses all the legal steps that are required to ensure that a will is valid and admitting it to probate.

What does "probating an estate" mean?

Probate is a legal process provided for by Florida law. It helps determine the value of the person's property and how these assets will be distributed to heirs. Proceedings take place in the circuit court where the deceased property owner lived or maintained his primary place of residence.

What is a will?

A will is a written document that outlines the disposition of property at death. The laws vary by state. In Florida:

• The maker of the will must be at least 18 years old.
• They must be of sound mind at the time the will is signed.
• It must be in written form.
• It must be witnessed in the special manner provided by the law for wills.
• It needs to follow exactly the formalities required for the execution of a will.
• To be in force, it must be submitted and approved by the probate court.

A will can be changed at any time during the life of the person and does not become final until death. The changes can only be made by drawing up a new will or by adding amendments to the original. These are known as "codicils." The terms of a will can't be changed by crossing something out or writing something in. In fact, that can invalidate the entire will.

What does a will accomplish?

A will helps decide who gets property instead of letting the courts decide for you. It typically includes the name of a personal representative (executor) who manages the estate after your death. A will also allows you to set up a trust for minors, determine which assets can be sold or assigned without court proceedings, make gifts to charity, decide who will bear any tax burden and assign a guardian for minor children.

When and where does a will get filed?

Upon death, the custodian of the will must deposit it with the Clerk of the Circuit Court within 10 days after receiving word that the person is deceased. The custodian must supply the person's date of death or his or her social security number to the Clerk along with the will.

What happens if there is no will?

If there is no will when a person dies, the real and personal property is distributed according to formulas set down by the law. The court will appoint a personal representative on your behalf to manage your estate. The cost of probating can be higher than if you planned your own estate through a will. Plus, the administration of the estate may come under greater court supervision.

How long is a will good for?

A will is valid until it is either changed or revoked in a manner consistent with the law. As we noted, a will can be updated as often as one likes, as long as it follows the requirements. Changes are often made because of tax law amendments, marriage, divorce, birth of children, etc. As long as it is changed and filed properly, there is no expiration date.

Does a will increase probate costs?

No. In fact, it will frequently reduce expenses because important things like designation of a personal representative and disposition of assets are already included in the will. If they aren't, then additional court time is required to sort through all aspects of the estate, from designating a personal representative to determining distribution of assets to heirs.

Who should prepare a will?

A will should be drafted by a qualified professional, particularly if the estate is large or complex. An attorney who specializes in wills and estates is a good choice and can walk you through the local, state and federal requirements that are specific to your case.

How many proceedings are there for the administration of an estate?

In Florida, there are four distinct proceedings:

1. Formal Administration: This proceeding is used when there are considerable assets and it's necessary to have a personal representative appoints to act on behalf of the estate.
2. Family Administration: When the beneficiaries of the estate are the surviving spouse and lineal descendants, and the estate is less than $60,000 for federal estate tax purposes, this proceeding is usually used.
3. Summary Administration: When the estate is not more than $25,000 or the descendent has been dead for more two years, a Summary Administration is the proceeding used most often.
4. Disposition without Administration: When the estate assets don't exceed funeral expenses plus the cost of medical and hospital expenses, this proceeding is necessary.

Where are probate papers filed?

Probate papers are filed with the Clerk of the Circuit Court in the county where the deceased lived. There is a filing fee required. Once the fee is paid, the clerk assigns it a file number and maintains a docket sheet that lists all the papers that are filed with the clerk for probate administration. We highly recommend that you seek the council of a qualified probate attorney to handle this for you.

Who supervises the probate administration?

The probate proceeding is overseen by a Circuit Court Judge. The judge appoints the personal representative and resolves all questions raised during the administration of the estate.

Who can be a personal representative?

Also known as an executor, a personal representative can be an individual, bank or trust company. Any individual who is either a resident of Florida, or is a spouse, sibling, parent, child or certain other close relative can serve as a personal representative. To be a personal representative, a bank or a trust company must be approved to do business in the state of Florida.

Who has preference to be a personal representative?

1. If the deceased left a valid will then then the person designated in the will will be nominated to serve.
2. If there is no valid will, then the surviving spouse has first preference, followed by the person selected by a majority of the heirs.