Probate

Probate is a legal process through which the assets of a deceased person are collected and inventoried, distributed to pay creditors’ claims against the estate, and any remaining assets are distributed to the heirs or beneficiaries. The Court determines the validity of the will and ensures that the estate is properly administered.

When a person dies, their original Last Will and Testament must be delivered to the office of the Clerk of the Circuit Court within 10 days of receiving information that the person is deceased. The custodian should deposit the will with the Clerk of the Circuit Court in the county where the decedent resided.

Frequently asked questions:

Do you need an attorney to deposit the will with the Clerk?
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 are necessary.

What happens if a person dies and has left no will?
If a person dies intestate (without a will), the person’s property will be distributed according to Florida law.

How are probate proceedings initiated?
Probate proceedings are initiated by filing a petition to administer an estate or to admit a will to probate. An attorney can assist you in determining the type of probate proceedings are necessary and prepare the necessary paperwork.

Are there different types of proceedings that can be filed depending on the size of the estate?
Yes, there are three basic types of proceedings for administering the decedent’s estate:

  • Formal Administration. This type of proceeding is used when there are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate. Letters of administration will be issued to the personal representative so that he or she will be able to administer the estate.
  • Summary Administration. Summary administration may be filed when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.
  • Disposition of Personal Property without Administration. This type of proceeding is filed to request release of the decedent’s assets to the person who paid for final expenses such as funeral bills or medical bills that accrued in the last 60 days. The form required to file for the disposition is available from the Clerk’s Probate Division, located at 425 North Orange Avenue, Room 340, Orlando, Florida 32801.

Is there a requirement that the personal representative be represented by an attorney?

According to Rule 5.030 of the Florida Probate Rules, a personal representative must be represented by an attorney admitted to practice in Florida unless the personal representative remains the sole interested person.
Can a person who is not a Florida resident serve as a personal representative?

A person who is not a Florida resident cannot serve as a personal representative unless he or she qualifies under one of the following exceptions.

  • The person is a child or parent or legally adopted child or adoptive parent of the decedent
  • The person is related by lineal consanguinity to the decedent
  • The person is a spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent
  • The person is related by lineal consanguinity to one of these people
  • The person is a spouse of any person listed in numbers 1 through 3 above

Link to The Florida Bar Pamphlet on Probate:

http://www.floridabar.org/tfb/tfbconsum.nsf/48e76203493b82ad852567090070c9b9/92f75229484644c985256b2f006c5a7a?OpenDocument