Wills & Probate Law Overview

In cases of the death of a loved one, it is most often necessary to file an action for probate in the circuit court where the assets belonging to the deceased are located or where the deceased resided prior to his or her death. When there are non-homestead assets that have been disposed of or transferred by means of a trust or that have been titled in such a way as to make any court intervention unnecessary, probate is not needed. Homestead and other property owned jointly by a husband and wife does not require probate when there is a surviving spouse. In that case, the surviving spouse becomes the sole owner by operation of law. That means that if happens automatically upon death with no court action needed.

"In Florida at this time, an attorney is necessary to file a probate action in small and large estates."

"Probate" means the process "to prove up a will". Many clients ask why a probate court action is necessary when the will was properly executed and notarized. Even if the will was properly prepared, a court is the one to make the determination that this was in fact the valid will of the deceased and these are the proper beneficiaries and administrator of the estate. Institutions such as banks will not rely on a will to distribute assets to the beneficiaries of a deceased person. They require properly executed court orders to make these distributions safely.

In the case where a person dies owning assets and does not leave a will, the probate case is called an "intestate" proceeding. The beneficiaries are then determined by the order of priorities set forth in the Florida Statutes. It may be necessary to conduct a search of missing heirs or beneficiaries. The court will appoint a personal representative to administer the estate under the supervision of the court according to an order of priority set forth in the Florida Statutes. The surviving spouse, lineal descendants (surviving children and grandchildren, and so on down the line) as well as other next of kin would have priority as beneficiaries of the estate.

If the person who died did have a will, the probate action would be called a "testate" proceeding. Here, the will is filed with the probate court and admitted to probate by the court once it is determined that it is in fact the valid will of the deceased. The will may or may not be contested. Each situation is different and should be discussed with your attorney.

"...it is most often necessary to file an action for probate in the circuit court where the assets belonging to the deceased are located or where the deceased resided prior to his or her death."

In Florida at this time, an attorney is necessary to file a probate action in small and large estates. A quick procedure is available in estates totaling $75,000 or under called "summary administration." A "formal administration" is required in estates that are larger in value, where "letters of administration" will be issued appointing a personal representative. Known creditors must be provided with proper notice and unknown creditors are provided notice by way of a publication in a local newspaper where they have 90 days from date of publication to file a claim against the estate with the court. Homestead property, which would be the home where the deceased resided, when there are a certain classes of surviving heirs, would be exempt from creditors' claims. "Exempt" means that the property cannot be liquidated or used to pay any debts of the deceased.