How Does Probate Work In Florida?
When a loved one has passed away, the family is often unsure of how to proceed in terms of opening a probate estate. There may be some confusion as to whether or not the deceased left a will. And of course, there may be relatives and creditors looking to claim part of the estate for themselves.
So how does probate actually work? The exact process for a given estate will depend on many factors. But here is a general overview of how the process works here in Florida.
When Is Probate Required?
First, it is important to understand when a probate estate needs to be opened. Probate is a court-supervised process of identifying and distributing assets that belonged to a deceased individual, who is known as the decedent. The court appoints a personal representative–sometimes known as an executor–to administer the estate. The personal representative must use the available probate assets to pay the decedent’s debts and the expenses of administering the estate; whatever remains is then distributed to the decedent’s heirs or beneficiaries.
There are many cases where a decedent has no probate assets. This does not necessarily mean they were poor. Many people have valuable assets that fall outside of the probate process. For example, any property that is jointly owned with a spouse is non-probate; so is any asset, like a life insurance policy, that has a named payable-on-death beneficiary. If there are little or no probate assets, then it is generally unnecessary to go through the formal Florida probate process.
How Does Probate Begin?
The first step is for someone to locate the decedent’s will, if one exists. Whoever has custody of the original will must then deposit it with the clerk of the circuit court in the Florida county where the decedent resided at the time of their death. If a probate estate needs to be opened, the clerk will require payment of a filing fee.
The court will then issue formal letters of administration to the personal representative. If the decedent left a valid will, then the personal representative nominated in that document is typically appointed. Otherwise, Florida law specifies the order of priority for naming a personal representative.
The letters of administration grant the personal representative the legal authority to act on behalf of the estate. This includes the ability to gather the decedent’s assets. It also means the personal representative needs to keep the court apprised of their actions, usually by filing an inventory and accounting of the estate.
What If There Is Litigation?
Most probate estates are administered without incident. But there are times when someone may initiate litigation as part of the probate process. For example, a family member may contest the validity of the will. Or the personal representative may reject a creditor’s claim for payment of a debt, which prompts the creditor to seek relief from the judge.
If you are involved in setting up a Florida probate estate and have additional questions about the process, contact the Pompano Beach estate & trust litigation attorneys at the offices of Mark R. Manceri, P.A., today.