Probate FAQs

MY LOVED ONE HAS DIED, DO WE NEED A PROBATE?

The answer depends very much upon the specific circumstances of your situation. Generally, if there is real estate involved it is likely that some type of probate case will need to be filed with the Court. This is also true if the deceased person has checking, savings, IRA’s, CD’s, or similar financial accounts that were not jointly owned or made Payable On Death to a specific person.

Feel free to contact the office for a no cost initial consultation to answer questions you may have about the probate process. You may telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

WHAT IS PROBATE?

Probate is a court supervised process that is often required when a loved one passes away. During th Probate Administration process, the deceased person’s “Probate Assets” are collected and their debts are paid. After payment of probate costs, taxes, and debts, the remaining probate assets will be distributed to the beneficiaries.Probate is a court supervised process that is often required when a loved one passes away. During th Probate Administration process, the deceased person’s “Probate Assets” are collected and their debts are paid. After payment of probate costs, taxes, and debts, the remaining probate assets will be distributed to the beneficiaries.
The Probate court case is usually opened in the county where the person died or where their residence was located on the date of death.
At the beginning of the Probate process, the court will appoint a Personal Representative if the case has been filed as a “Formal Administration”. The Court will oversee the process while the Personal Representative collects the assets, pays the expenses and debts, and distributes the assets to the beneficiaries.
If the person left a Will, the court will determine whether the Will is valid under Florida law. The Court will also determine who the beneficiaries are under the Will. If there is no Will, the Court will determine who the beneficiaries are according to the Florida statutes.
Under certain circumstances, a “Summary Administration” can be filed instead of a “Formal Administration”. However, this more streamlined process can only be used in certain circumstances:
(1) If the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 AND  The estate is not indebted OR All creditors’ claims are barred OR Provision for payment of debts has been made.
OR
(2) If the decedent has been dead for more than 2 years.
Sometimes it is possible to avoid filing a Probate case. This depends upon the particular facts of each case as well as the type, and amount, of assets and debts.
You may contact the office for a free initial consultation to answer questions you may have about the probate process. Telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

WHAT ARE “PROBATE ASSETS”?

The Probate Administration court process deals with the distribution of Probate Assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For example, a bank account would be considered a Probate Asset if the decedent is the only person named on the account and there is no beneficiary designated on the account to receive the funds at the death of the account holder.

Another example is in regard to life insurance. Life insurance policies usually name a beneficiary to receive the proceeds upon death of the insured. However, if there is no designated beneficiary, or if the named beneficiary is the probate estate, then a probate will be required to gain access to the benefits.

In regard to real estate, if the property is titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, it is a probate asset (unless it is homestead property). Real property owned by husband and wife as tenants by the entirety is not considered to be a probate asset and the property will go automatically to the surviving spouse upon the death of the first spouse.

Each asset must be analyzed to determine if it a “Probate Asset” that is subject to the Probate Administration court process.

You may contact the office for a free initial consultation to answer questions you may have about the probate process. Telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

WHO CAN START THE PROBATE ADMINISTRATION PROCESS?

Any interested person can file a petition for probate administration. This is usually a beneficiary, an heir, or a creditor.

Telephone (239) 997-0078 or email Alexis@SitkaLaw.com to schedule a free initial consultation.

WHAT HAPPENS WITH THE ORIGINAL WILL?

If there is a Will, Florida Law requires the custodian of the Will to deposit it with the clerk of the court within 10 days after receiving information that the testator (the Decedent) is dead. The custodian must supply the testator’s date of death or the last four digits of the testator’s social security number to the clerk upon deposit.

Telephone (239) 997-0078 or email Alexis@SitkaLaw.com to schedule a free initial consultation.

IS A PROBATE REQUIRED IF THERE IS A WILL?

People often believe that if there is a Will then that means there is no need to file a Probate case. This is not accurate. A Will usually contains the names of the beneficiaries and it provides further instructions to the Personal Representative regarding how the decedent wants his Probate assets to be distributed. However, a Probate Administration may need to be filed depending upon the nature of the assets and debts.

Feel free to contact the office for a no cost initial consultation to answer questions you may have about the probate process. You may telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

WHO IS APPOINTED BY THE COURT TO BE THE PERSONAL REPRESENTATIVE?

The court will first look to see if there is a valid Will in which case the person designated in the Will has first preference to be appointed as Personal Representative. If there is no valid Will, the court will look to the Florida Statutes to determine who is entitled to preference to be appointed as Personal Representative, in the following order:The court will first look to see if there is a valid Will in which case the person designated in the Will has first preference to be appointed as Personal Representative. If there is no valid Will, the court will look to the Florida Statutes to determine who is entitled to preference to be appointed as Personal Representative, in the following order:

1. The surviving spouse.

2. The person selected by a majority in interest of the heirs.

3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
A person is not qualified to act as Personal Representative in Florida if the person:
1. Has been convicted of a felony.

2. Is mentally or physically unable to perform the duties.

3. Is under the age of 18 years.

4. Is a non-resident of Florida that is not related to the decedent.
You may contact the office for a free initial consultation to answer questions you may have about the probate process. Telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

DOES THE PERSONAL REPRESENTATIVE HAVE TO PAY THE DECEDENT’S DEBTS FROM THEIR OWN FUNDS?

No. A decedent’s debts are paid from the assets of the decedent’s Probate estate. The Personal Representative will have to notify known or reasonably known creditors of the Probate. The Personal Representative will also have to provide notice of the Probate by publication in the newspaper for the benefit of unknown creditors. Creditors must file their claims by the appropriate deadline or they will lose their right to payment of the debt.

You may contact the office for a free initial consultation to answer questions you may have about the probate process. Telephone (239) 997-0078 or email Alexis@SitkaLaw.com.

HOW LONG DOES IT TAKE TO COMPLETE A PROBATE?

There is no deadline for completing a Probate. A “Formal Probate” administration is complete after the assets are collected, the creditors are paid, and the remaining assets have been distributed to the beneficiaries or heirs. Sometimes the Probate process will be delayed if there are disputes among beneficiaries or creditors or for other similar reasons. Generally, the final accounting and other documents required to close the probate administration are due within 12 months from the date the Letters of Administration are issued by the Court. However, this period can be extended by the Court if necessary.

A “Summary Administration”, if permitted, is usually completed much quicker than a “Formal Administration”.

Telephone (239) 997-0078 or email Alexis@SitkaLaw.com to schedule a free initial consultation.

DO I HAVE TO HIRE A LAWYER TO HANDLE THE FLORIDA PROBATE?

Yes. In most cases, an attorney is required to represent the Personal Representative in Probate case in Florida. There is a limited exception if the Personal Representative is the sole “interested person” or is an attorney. The phrase “interested person” includes creditors as well as other beneficiaries.

Telephone (239) 997-0078 or email Alexis@SitkaLaw.com to schedule a free initial consultation.