What Is Probate?

The historical definition of probate is, “proving the will.” Probate is the judicial process that establishes someone’s death, appoints a personal representative (or executor), identifies the decedent’s assets, determines the beneficiaries of the assets, deals with the decedent’s creditors, and ultimately distributes the decedent’s assets to the beneficiaries. In Florida, a personal representative must be represented by an attorney.

If a Florida resident dies and owns assets, typically, real estate, bank or investment accounts, personal property, etc., then probate is usually necessary, even if the decedent left no will. If an out-of-state resident dies owning real estate in Florida, then a Florida Probate will be necessary. If there is a will, it will be admitted to probate if the court determines that the will was done properly and that the person named in the will as the personal representative or executor is qualified and eligible to serve. Probate requires a number of steps (or stages) and an experienced attorney will represent and assist the personal representative through the entire probate process. Normally it takes about 4 to 6 months to complete probate and distribute the decedent’s assets to the beneficiaries.

If there is no will (called dying intestate), the probate process includes establishing who the heirs are and who is legally eligible to inherit the assets of the estate. However, if a husband and wife own everything together as joint owners, the assets left behind by the deceased spouse will pass automatically to the surviving spouse, and the probate of the deceased spouse’s estate will not be necessary. However, if the spouse that died owns an asset or assets in his or her name alone, then the surviving spouse will have to retain an attorney and probate the asset(s). The probate process, in turn, will determine whether the surviving spouse is to receive all or a portion of the deceased spouse’s asset(s).

During an intestate probate process, a family member is usually willing to step up and retain an attorney to petition the court to appoint the family member as a personal representative of the estate. However, other family members must be given notice of the petition and given an opportunity to object to the petition. The judge will then either appoint that person or select a different person to serve as a personal representative.

Florida has an abbreviated probate procedure for small estates called summary administration that does not require an attorney. However, “going it alone” will leave you with no one to guide you through the legal process and requirements. If your documents are incorrect or filed incorrectly, the clerks will reject them, and you’ll have to start over. People frequently attempt summary administration on their own, run into problems, and then hire an attorney to help them anyway. These problems can be avoided if an experienced attorney is hired from the start.

For more information on probate in Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (352) 369-0664 today.

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