Probate

Probate is a court supervised process of distributing property as directed in a will or in accordance with the law if no will exists. Since there is court supervision of the entire process, the heirs/beneficiaries can be assured of a full and fair valuation and distribution of the estate. There are two primary types of probate administration utilized in Florida: the summary administration and the formal administration. Which type will be required is determined by the value of the estate, minus certain excluded assets. Formal estate administration is much more complicated, and therefore requires considerably more cost, in both time and money, to complete.

When is probate necessary?

Probate is necessary whenever a deceased person leaves titled assets in their name alone. The main function of probate is to transfer title of the decedent’s property to his or her heirs and/or beneficiaries. Probate also makes sure that outstanding debts and taxes of the estate are taken care of properly before the final distribution of assets to the rightful heirs or beneficiaries.

Where does the probate of a will take place?

A will is probated in the Court of the county and state where the decedent lived at the time of their death. If the decedent owned any real property in another state, another probate proceeding may be required in that state.

Who is responsible for handling the probate?

The Personal Representative (“PR,” often called “Executor” in some other states) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding. The Personal Representative has many responsibilities including, but not limited to, making a list of all the assets and debts of the estate and carrying out the directives of the will to the best of his or her ability.

Who can be my personal representative?

Your personal representative can be any adult who is a Florida resident, or a relative of your choosing, regardless of state of residence.

Does a personal representative get paid?

Yes. Personal Representatives are typically entitled to a fee of about 3% of the probate estate for their work. However, when the PR is a family member or close friend of the decedent, they will often waive payment of the fee, especially if they will also inherit assets under the will. Also, reimbursement is available for any out-of-pocket expenses incurred in handling the estate.

What is the downside to being a Personal Representative?

An individual who does not fulfill his or her duty is personally liable for damages caused in the administration of the estate.

Liability may arise from selling an asset without the authority to do so, or at an inappropriate price; improperly managing the assets of the estate; neglecting to file tax returns on time; failing to collect claims and moneys due the estate; distributing property to the wrong beneficiaries, etc.

What if there is no will?

If a person dies without a will, it is called dying “intestate.” The probate court will appoint a personal representative, when applicable, and the remaining estate assets will be distributed in accordance with state law, after creditors and taxes have been paid.

This material is for informational purposes only and should not be construed as legal advice. Florida law requires that virtually all estates have a licensed Florida attorney assisting with the estate administration. Effective January 2024, our firm is only accepting probate matters on a selective basis, but if we cannot assist you, we will be happy to recommend other law firms that may be able to guide you through the process. Remember that a good estate plan can help your family avoid having to go through probate court.