WHAT IS PROBATE?
Probate is a legal process through which the assets of a deceased person are properly distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are paid and proper distribution is made.
WHAT IS A WILL? WHEN AND WHERE SHOULD IT BE FILED?
A will is a document executed by a person that disposes of his/her property after his/her death. It generally names a personal representative to administer the estate. After the death of the person, the custodian of the will must deposit the will with the Clerk of the Circuit Court, within ten (10) days after receiving information that the person is deceased. The custodian should supply the person's date of death or the person's social security number to the Clerk upon deposit of the will, if this information is available.
DO YOU NEED AN ATTORNEY TO DEPOSIT A WILL?
No, an attorney is not necessary to deposit the will with the Clerk of the Circuit Court. However, you may want to consult with an attorney before filing so that he or she may determine whether Probate proceedings will be necessary.
ARE THERE DIFFERENT TYPES OF PROCEEDINGS THAT CAN BE FILED DEPENDING ON THE SIZE OF THE ESTATE?
There are three basic types of proceedings for administering the decedent's estate:
- Formal Administration
This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets, debts or other special circumstances. The capacity in which the representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.
- Summary Administration
Summary administration may be filed when the value of the entire estate, excluding exemptions, does not exceed $75,000.
- Disposition of Personal Property Without Administration
The disposition is filed to request release of assets of the deceased to the person who paid the final expense, such as funeral bills or medical bills for the last 60 days. This procedure may be accomplished with the filing of an informal application. The form required to file the disposition is available from the Clerk of Circuit Court in the Probate Division, and upon request the deputy clerk can assist the applicant in the preparation of the application. The estate cannot include real property.
WHAT HAPPENS IF A PERSON DIES AND HAS LEFT NO WILL?
The property will be distributed in accordance with Florida Law.
WHAT HAPPENS IF THERE IS A WILL FILED BUT NO PERSONAL REPRESENTATIVE HAS BEEN NAMED?
It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate.
HOW ARE PROBATE PROCEEDINGS INITIATED?
Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed personal representative and/or distribute property depending on size and complexity of property. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.
WHAT TYPE OF PAPERWORK MUST ACCOMPANY THE FORM FOR FILING A DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION?
The following must be provided:
- If the decedent has a will, the original must be deposited with the Clerk of Circuit Court.
- Itemized, paid funeral bill (reflecting the name of the person who paid it).
- Paid receipts for any medical expenses incurred sixty days prior to death (reflecting the name of the person who paid it, or canceled check(s).
- Paid receipts for any medical expenses incurred sixty days prior to death.
- Death certificate.
- Statement regarding the type of asset to be released.
- Identification of the person filing.
- Filing fee as set by Florida Statute.
WHAT HAPPENS AFTER THIS INFORMATION IS FILED WITH THE CLERK?
The Court will enter an Order either allowing or disallowing the release of the assets. A certified copy of the Order is then mailed to the petitioner.