Probate

What Is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.

There are two main types of probate administration under Florida law: formal administration and summary administration.

Probate Assets

Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s 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.

Why Is Probate Necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid.

What Is A Will?

A will is a document executed by a person which disposes of his/her property after his/her death. It generally names a personal representative to administer the estate. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. It may be necessary for an attorney to petition the Court on behalf of heirs or beneficiaries, or other interested parties, to appoint a personal representative to administer the estate.

When Should A Will Be Filed?

The Florida Statutes indicate the custodian of an original will should deposit (file) the original will with the Clerk of Court in the county where the decedent resided or is domiciled, within ten (10) days of receiving information that the person is deceased.

What If There’s No Will?

When someone dies without a will it is called “intestate.” If someone has a will it is considered “testate.” If there is no will then the assets would be distributed according to the Florida Intestate Statute.

Do I Need An Attorney?

You do not need an attorney to file the will with the Clerk of the Circuit Court. However, you may want to consult with an attorney before filing the will so that he or she may determine whether Probate proceedings will be necessary. Florida Probate Rule 5.030 requires an attorney for many Probate and Guardianship cases. Even those Probate matters that do not require an attorney may be quite complicated for a pro se litigant.

Formal Administration

Formal Administration may be filed when there are assets exceeding $75,000, and/or when it is necessary to appoint a representative to act on behalf of the estate.

At the time of appointment, Letters of Administration are issued to the personal representative by the Court giving him or her the authority to complete the administration of the estate. The Court oversees the administration of the estate to ensure the decedent’s debts are paid and correct distribution to the heirs and/or beneficiaries.

Summary Administration

Summary Administration may be filed when the value of the entire estate subject to administration does not exceed $75,000. Summary Administration does not require the appointment of a personal representative. A Petition for Summary Administration can be filed by any beneficiary or nominated personal representative in the decedent’s will, or by an attorney representing that petitioner. If the petitioner chooses to proceed without an attorney, he may research the requirements and find necessary forms for filing a Summary Administration.

Disposition Of Personal Property Without Administration

Florida Statute 735.301 allows for an informal application to the court for transfer of assets when the decedent has only left personal property (No real estate can be transferred through this process). If you are a surviving spouse, or if no spouse, the surviving child of the decedent; or you paid the funeral expenses for the decedent, you may be eligible for this process. After all the required documents have been filed, the court will review what you have provided and generate an order. The order is very specific, it states the asset is to be devised to the petitioner. The petitioner obtains a certified copy of the court order and provides it to the asset holder.

If everything meets the statutory guidelines, the order will state that the asset(s) now belong to you. The prepaid certified copy of the original order will be mailed to you for submission to the asset holder. Agencies, such as the Dept. of Motor Vehicles and banks, require a certified copy of this order to release assets.

There is a fee for this process. Before you begin, you may want to inquire with the holder of the asset (for example, if the asset is a bank account, contact the bank) to see what may be required for transfer. Depending on the asset and your relationship to the decedent, you may only need a death certificate and certified copy of the will.

Viewing Cases Online

At this time, there is no internet access available to the public for viewing imaged documents unless you are a registered user.

Images of probate court documents are also available for viewing at any of the Clerk’s locations on the public view terminals. Our staff will be happy to demonstrate if you should need assistance.

You may also order, online or by mail, copies of any document not sealed by Florida Statute, Probate Rule, Administrative Order or Court Order. The copies will be mailed to you upon receipt of the service fee of $1.00 per page. Please include a self-addressed, postage paid envelope with your payment.

Estate Bond Schedule

Florida law gives the Court full latitude and discretion to set the estate bonds and delineates in Section 733.403(1) many factors that must be considered when setting these bonds. The following chart is prepared as an aid for the Court in setting bonds based upon an estate’s gross value and other factors of that statute.

Forms listed on this site are for reference only and are not warranted for, nor are they a guarantee of, suitability for any specific purpose. They are not intended to serve as legal advice and do not substitute for competent legal counsel or direct legal research. Simple access to forms cannot serve as an adequate substitute for legal counsel. As many of these forms are created by entities outside our control, some forms may be outdated. Many forms are controlled by the judiciary, legislature, or agencies at the level they are intended to be filed or above. Please refer to appropriate Florida Statutes, Florida Rules of Judicial Administration, Administrative Orders and Local Rules and Practices for specific information.