What is it?

lawbook-gavelProbate is a court-supervised process which occurs when an individual dies with assets in his or her name alone (i.e. assets which were not owned jointly with another person and that did not have a beneficiary or successor designation). The probate of an estate results in the assets of the decedent being distributed to the designated beneficiaries of the will, or, in the event there is no will, to the heirs at law of the decedent.

Why do I need an attorney?

Because probate is a court-supervised process, the personal representative of an estate is required to retain an attorney to submit petitions and orders to the circuit court on his or her behalf, and to protect and advise the personal representative, so that they may avoid problems with interested estate beneficiaries and creditors. The attorney represents ONLY the personal representative, and does not represent the beneficiaries of the estate.

How long does it take to probate an estate?

Probate can last from as little as a few months to as many as several years, depending on the issues and assets involved.

What happens in the probate process?

This is not a complete list, but these are some of the things common to most probates:

  • Deposit the decedent’s will with the court.
  • File a Petition for Administration with the Court (document which asks the court to appoint a personal representative for the Estate)
  • File an Oath of Personal Representative and Designation of Resident Agent.
  • File Notice of Administration and serve same on all interested parties.
  • File a Notice to Creditors, and publish same for two consecutive weeks. (Creditor period is three months from date of publication)
  • Judge will issue Letters of Administration and an Order Appointing Personal Representative and admitting will, if any (allowing the personal representative to begin performing administrative duties)
  • Send formal Notice to Creditors to all known creditors of the estate, including the AHCA if the decedent was over the age of 55.
  • File proof of publication of notice to creditors with the court.
  • File an Inventory of all estate assets indicating the date of death value for those assets.
  • File an Affidavit of No Estate Tax Due (if decedent’s assets are under the current estate tax cap).
  • File Personal Representative Claim, if any (for reimbursement of any out of pocket expenses paid on behalf of estate).
  • Open estate bank account and liquidate or transfer assets to Estate.
  • Once creditor period has expired, file a Petition to Determine Homestead Status of Real Property (if the decedent owned homestead property at his or her death), and file on interested parties.
  • File Petition for Exempt Property, if any, and serve on interested parties.
  • File Proof of Service of Notice of Administration, Proof of Service of Notice to Creditors and Proof of Service of Petition to Determine Homestead with the court.
  • Pay personal representative claims, and personal representative fee, and any other outstanding administrative costs, if any.
  • Pay creditor claims if estate assets allow.
  • Obtain satisfactions from creditors, if any, and file with court.
  • File Petition for Discharge and serve on all interested parties.
  • Prepare and File Final Accounting and serve on all interested parties.
  • File Statement regarding creditors.
  • Obtain Order of Discharge from the Court.
  • Make final distribution to beneficiaries.
  • The Florida Probate Code may be found in Chapters 731 through 735 of the Florida Statues.