Basic Florida Probate Information

Probate is a process of the administering an individual’s final affairs and is designed to transfer the deceased's property.
basic Florida probate information - article by Murphy & Downs

Probate is transferring property after a person’s death. 

What is the purpose of Florida Probate Laws?

The laws of probate have changed throughout history; however, the purpose has remained the same.  Before passing away, most people write down their intentions, in a Will or Trust, as to how property will be distributed and how certain debts will be paid once they pass away.

What does it mean to be in probate?

In Florida Probate is a process of the administering an individual’s final affairs and is designed to transfer the deceased’s property.  This process is supervised by the Probate Court.  Typical property that may be subject the probate process is property owned solely by an individual at the time of their death.  Probate does not include property that passes to another by ownership or designation.

Is probate required if there is a will?

YES.  A will guarantees a probate in Florida.  The phrase “probating a will” refers to the process in which an individual can prove to the court that the deceased drafted a will and followed all necessary legal procedures in doing so.

Do you have to do probate when someone dies?

NO. Probate in Florida is only required for property owned solely by an individual at the time of their death or assets which do not have a beneficiary designation.  If probate avoidance techniques are used probate is not necessary.

What does it mean to avoid probate?

Many seek to avoid the probate process, mainly in order to avoid paying probate fees. Nonetheless, avoiding the probate process altogether is possible.

There are three key ways in which one can avoid the probate process and its protections: by having joint ownership, survivorship, and revocable trusts.  However, the probate process exists to protect all parties involved.

What Occurs in Probate?

The process of probate may be uncontested or contested.  Generally, most issues that are contested arise during the process because of a dissatisfied heir is asking for a share of the decedent’s property that is larger than what he or she is actually receiving.

Arguments that can arise during the probate process are:  the deceased did not have sufficient mental capacity to know what they were doing at the time the will was executed and did not follow proper and necessary legal formalities in the drafting of the will, or the deceased was possibly improperly influenced in making gifts before their death.  However, most of estates that go through the probate process are not contested.

The basics of probating an estate include:

  • Collecting all probate property belonging to the decedent
  • Paying all claims, debts, and taxes that are owed by the estate
  • Collecting all rights to dividends, dividends, etc.
  • Settling any disputes involving the estate
  • Distribute or transfer any remaining property to the heirs of the decedent

Typically, the decedent will name a person to be Personal Representative (executor), who will take over the management of his or her affairs upon death.  If an PR is not named, the court will appoint a personal representative, or administrator, to settle the estate.  

Usually, a person may leave property to any person they wish and may make such distinctions in their will.  But, the Probate Court may have to override the decedent’s wishes.  For instance, in Florida a spouse is entitled to a certain amount of the property, or a creditor may have a claim on the estate. Florida prescribes the length of time that an estate must remain open to allow creditors a sufficient amount of time to present any claims to the estate. 

Various costs may be attached to the probate process, which are typically paid by estate assets. Costs may include:

  • Attorneys’ fees
  • Fees for the personal representative
  • Court costs

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