Probate Law

In the eyes of probate court, a person dies “testate” or “intestate”. To die testate means to die with a “will”. To die intestate means to die without a “will”.

Probate is the administration of a person’s estate, which means that the courts divide decedent’s assets according to “will” or statutory law. You can read Florida’s probate code @ http://www.leg.state.fl.us/statutes/ , Chapters 731-735.

Not all individuals have estates that need to be probated. To have an estate probated there must be sufficient assets to satisfy debts, pay for the costs of probate and distribute to the beneficiaries. In other words, without sufficient assets there is usually no need for probate.

Often assets are transferred by law outside of probate. For example, the marital home (homestead) automatically by law transfers to the surviving spouse without probate. The same is true for most joint bank accounts and life insurance proceeds. If you die, the surviving spouse acquires the bank account and the monies from insurance without involving probate.

Creditors may pursue probate to determine if in fact decedent’s assets could satisfy their claims. As a general rule, rarely due creditors initiate probate unless there is significant debt and a good probability of recovery. Otherwise, creditors avoid spending good money chasing bad.

Upon death determine the existence of a “will”. Florida requires the “will” be filed with the clerk of the probate court within 10 days of death. See Florida Statute http://www.leg.state.fl.us/statutes/ , §732.901. The original “will” maybe in a safe deposit box, a home drawer, with a family member or with an attorney. Non-authorized persons would need a court order to gain access to a bank safe deposit box.

The “will” sets out the distribution of assets (who will receive what) and who will be personal representative. If no “will” is produced, an estate probated would be dispersed according to Florida statutory law. Normally, without a “will”, the priority of beneficiaries would be the surviving spouse, children, parents, siblings etc. To read the exact priority of beneficiaries see Florida Statutes http://www.leg.state.fl.us/statutes/ , in the search option type in the word “intestate” for a list of priorities of beneficiaries. After reading, if you have further questions you may contact this office for possible assistance.

A “will” names the personal representative. If no “will”, the personal representative may be designated by the beneficiaries or appointed by the court. The personal representative (PR) assumes the official role of managing decedent’s estate to preserve assets, settle debts, distribute beneficiary’s assets and close the estate. Before beneficiary distribution occurs, all valid estate liabilities must be addressed. Asset exemptions such as homestead, funeral expenses, insurance proceeds and the costs of administering the estate are protected from creditors.

Formal probate will be initiated by filing a Petition For Administration with the court. This would state among other things the decedent’s date of death, where his domicile is, the estimated value of his estate, known beneficiaries, ages of minors, relationship to decedent and the proposed personal representative. Copies of the Petition For Administration would be provided to interested parties. If no objections to the petition then waivers should be obtained to expedite appointment of the personal representative ,otherwise, a hearing before the court is necessary to appoint the personal representative. Once letters of administration have been issued the personal representative has the duty to inventory and protect estate assets.

Florida law requires a notice of administration to be published in the legal section of a local newspaper. The notice will run one time each week for four weeks. This will start the clock running for creditors to file their claims against the estate, which must be done within 90 days of the first publication. The personal representative is also required to file a statement listing all known creditors within 60 days of appointment and formally notify known creditors of the probate proceedings. If creditor claims are filed the personal representative must file objections within 30 days of filing. If the personal representative fails to object then filed claims are presumed valid. If the personal representative files objections then the creditor must take action within one year to protect his claim.

If an estate has not been resolved within one year, a request for an extension of time must be made to the court.

This outline gives a summary of probate proceedings in Florida. There are many factors that would affect the timing and approach to these proceedings, which is why the courts require that an attorney be involved in probate proceedings along with the personal representative. For specific information directed to your situation please contact this office at your convenience.