Frequently Asked Questions
Florida Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries.
Yes Florida law almost always requires an attorney be involved. Florida law requires an attorney represent the Personal Representative/Estate for all probate matters except the disposition of personal property without administration.
The reason is that the Florida statutes many legal issues arise, even in the most basic estate administration and therefore the state by statute requires that an attorney be involved.
The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative represents the estate and is not the attorney for the beneficiaries.
The probate assets are those assets in the decedent’s sole name at death. Assets that are owned so they will pass by operation of law such as joint tenants with right of survivor-ship or transfer on death accounts, or by contract such as insurance proceeds that pass a named beneficiary other then the estate are not probate assets.
Probate is needed to finish up the affairs of the decedent and properly re-title the assets to whom they should pass. Probate laws have been in force in Florida since 1845. Florida statutes have default provisions also known as the intestate rules which apply if the decedent dies without leaving a valid will and has property in their sole name. The decedent has the authority to make decisions regarding their property that is in their sole name by leaving a valid will.
There are a number of ways to avoid Florida probate among the most common ways to avoid Florida probate are by having property funded in a revocable trust which passes the property to named beneficiaries, through transfer on death accounts which automatically pass upon the death of the account holder to their named beneficiaries or by contract such as an annuity, 401k plan or insurance policy.
A will is a writing, signed by the decedent who is 18 years of age or older who has the mental capacity regarding what they are doing and that is signed by two witnesses and a notary. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee and naming a guardian for minor children. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the default provisions provided in Florida intestacy law. Without a valid will, or if the will fails to properly dispose of all of the assets, then Florida statutes provide who shall receive such property. In the absence of a direction regarding the naming of a personal representative the default provisions of Florida law controls. A will does not help avoid Florida probate. A will only becomes effective upon the death of the testator – person disposing of their property at which time the property in their sole name requires probate for to the assets to reach the designated beneficiaries or the title to be changed to their name.
No, the details of a probate administration are a matter of public record and have few privacy protections. This is one of the benefits of having a revocable trust. The distribution of and property properly funded in the trust is a private matter unlike probate proceedings.
Surviving Spouse And No Lineal Descendants: If there is a surviving spouse and no lineal descendants, the surviving spouse receives everything.
Surviving Spouse And Lineal Descendants: If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives everything.
Surviving Spouse And One Or More Lineal Descendants: The surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.
No Surviving Spouse, But Lineal Descendants: If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.
No Surviving Spouse, No Lineal Descendants: If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
While there may be others, the following is a list of persons or entities often involved in the probate process:
- Personal Representative
- Clerk of the Circuit Court
- Circuit Court (acting through a Circuit Court Judge)
- Claimants (People owed money or claiming to be owed money)
- Surviving Spouse, Children and/or other beneficiaries
- Florida Department of Revenue
- Internal Revenue Service (IRS)
A Circuit Court Judge presides over probate proceedings for the county in which the decedent was domciled. For example a Circuit Court Judge for the probate division of Broward County Probate Court supervises all probate matters for people who died domiciled in Broward while a Circuit Court judge in Palm Beach County supervises the Palm Beach Probate process for Palm Beach County decedent estates.
The personal representative is generally a person, but may also be a bank or trust company. The personal representative is appointed by the court to be in charge of the administration of the estate.
If the decedent prepared a valid will the named personal representative nominated in the will has preference to serve as long as they are legally qualified to serve as the personal representative.
If the decedent did not leave a valid will, the surviving spouse if any has preference, with the person selected by a majority in interest of the heirs having a secondary preference.
The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative if they are at least 18 years of age, have not been convicted of a felony and have not been declared lacking mental capacity.
A Trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.
A Florida will can be contested through Florida Probate Litigation. Some common reasons to contest would be:
- If a beneficiary or heir felt that the testator lacked testamentary capacity at the time the will was executed
- If someone is unable to recall the names of their spouse or children
- Does not know what they are worth
- Can not remember what state they are in
These would all pose significant questions of lack of testamentary capacity.
Someone may have capacity at one moment but not at others if someone is ill and on a lot of medication this may impair their capacity.
- Undue influence is also reason for challenging a Florida will and retaining a probate litigation attorney.
People sometimes exert undue influence to obtain gifts from Florida testators who are elderly, sick, or weak. To be considered undue influence, a person’s mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the influences of persons in close confidential relations with him or her, that he or she is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another.
No, if a Florida testator owns a home, condo, or land in another jurisdiction in their sole name that other state would need to have an ancillary administration. Each Ancillary proceeding would need an attorney licensed in that state and would have a different probate judge overseeing the matter.
Florida decedent also had a home in Southern California, a piece of vacant land in Chicago Illinois, a condo in Philadelphia Pennsylvania, and a commercial building in Manhattan, New York. Then an ancillary probate administration would be needed in the Los Angeles Superior Probate Court, or whatever South California county the home was located in, an ancillary administration for the estate administration of the Cook County piece of land in Chicago would be needed, as well as an ancillary administration required for the Philadelphia Pennsylvania condo and an additional ancillary administration for the probate in New York would required.
Yes, a personal representative in a Florida estate may receive a fee.
Yes, any provisions made for the benefit of an ex spouse in most cases will not longer be enforceable.