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What Is Probate?

Probate is a court supervised method of identifying, gathering and distributing “probate assets” in accordance with a deceased individual’s will if a valid will exists on the date of death. If there is no valid will, then the individual’s probate property will be distributed according to the specific requirements set forth in the Florida Statutes and other provisions of Florida law. As part of the probate process, the decedent’s assets will be used to pay for the attorney’s fees and costs of the probate and to pay for debts and taxes owed by the decedent.

What Property Is Included and What Property Is Not Included In Probate?

Not all property owned by the decedent is subject to the probate process. Only assets designated as “probate assets” go through probate. Often, assets pass outside of the court probate process which means that creditors may not access these assets to pay debts. Generally bank, investment and similar accounts titled jointly with right of survivorship or payable on death to another person are not probate assets. Real estate that is titled joint with right of survivorship is not usually considered to be a probate asset. Real property that is titled in the name of a husband and wife as tenants by the entirety is not a probate asset.

What Is The Difference Between Formal and Summary Administration?

There are two main types of Florida probate cases. There is what is known as a formal administration and there is what is called a summary administration. Formal administration involves the appointment of a personal representative. It requires the personal representative to give certain notices to known creditors and to publish notice of the probate administration in the newspaper to alert unknown creditors. Because Florida law requires that the creditors be given three months from the date of first publication to file a claim in the probate proceeding, the Formal administration is a longer process than a Summary Administration.

What if there is a Will? What if there is no Will?

Pursuant to Florida Statutes, a person with custody of a will is required to file the original will with the clerk of court within 10 days after receiving information that the individual is deceased. People often believe that if there is a will then that means there is no need to file a probate case. But, this is not accurate. A will contains the names of the beneficiaries and it contains further instructions regarding how the decedent wants his probate assets distributed. Most times the court will follow the instructions for distribution laid out in the will. However, sometimes it’s possible that the will attempts to make transfers that are not permitted by Florida law. This usually happens by mistake when the decedent attempted to draft a will without seeking advice from an attorney. If there are probate assets to distribute then it is likely that some form of probate will need to be filed. Each situation is different and must be analyzed to determine whether a probate administration will need to be filed.

What Is A Personal Representative?

A personal representative is appointed as part of the probate proceeding in cases of formal administration to be in charge of the administration process. In Florida the title for this person in charge is called a Personal Representative. Other states might use different names such as Executor or Administrator. Individuals who are appointed as personal representatives have the duty to manage the deceased individual’s estate during the probate process and carry out the directives listed in the will and to do other things that are required by the Court and by Florida law.

What if Someone Dies and I am in Charge?

An estate plan is invaluable because these arrangements determine the method in which property is distributed after an individual’s death. This planning also often provides for documents that include important health care or financial directives if an individual becomes incapacitated. There are several types of estate planning documents that are commonly used in Florida. Visit this page to find out more.

Can I avoid Probate?

An estate plan is invaluable because these arrangements determine the method in which property is distributed after an individual’s death. This planning also often provides for documents that include important health care or financial directives if an individual becomes incapacitated. There are several types of estate planning documents that are commonly used in Florida. Visit this page to find out more.