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Probate

WHAT IS PROBATE?

Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes claims and expenses (if applicable) and distributing to beneficiaries.

With or without a will, the court oversees the decedent’s estate to ensure debts are paid and proper distribution is made. However if there is not a will, the probate proceeding is referred to as intestate and assets are distributed according to law provisions. 

Whether or not an estate is required to go through Probate depends on the way the decedent assets are situated at the time of death. If the decedents assets are in his or her name solely (i.e. bank accounts; real property, bonds etc),  the estate would be subject to go through a Probate proceeding.   In this type situation, interested parties would need to seek legal assistance as our office can not give legal or procedural advice. If assets are jointly held, in most circumstances a probate would not be necessary. 

Florida Law establishes two types of probate administration

  1. Formal Administration which is generally used when the estate value exceeds $75,000,00. Florida Law generally requires an attorney to administrator Formal Administration.
  2. Summary Administration is generally used when the estate value is $75,000.00 or less.

Florida Law also establishes a non-administration probate proceeding called Disposition without administration.”  This procedure is generally used when the total amount of assets are less than the funeral bill amount.  This procedure may not be used when there as other assets involved.  The intent is to reimburse the person who has paid the funeral bill. Our office can assist heirs and beneficiaries through this process.  The process is also sometimes referred to as a Small estate Affidavit. 

The required forms and documentation for a Disposition without administration are as follows:

  1. Original Last Will and Testament of the decedent
  2. Certificate of Death
  3. Funeral bill showing paid in full and who paid.
  4. Copy of bank statement, stock certificate or any related iformation regarding the assets that you are attempting to transfer with this procedure.

WHAT IS A WILL?

A will is a written direction controlling the disposition of property at death.  A will usually designates a personal representative and names beneficiaries to receive probate assets.

The laws of each state set the formal requirements for a legal will.  Pursuant to State Law 732.901, the original Last Will and Testament of the deceased person must be deposited with the clerk of courts within 10 days AFTER a person is dead.  The statute also states the date of death or social security number must be supplied upon the deposit of the will.  Our office prefers a death certificate to be filed with the original will.

WHAT HAPPENS WHEN THERE IS NO WILL?

If you die without a will (this is called dying “intestate”) your property will be distributed to you heirs according to a formula fixed by law.  If you fail to make a will, the inheritance statute determines who gets the property.

Probate Fees