» Probate

What is Probate?

Probate is the court process that transfers any asset in the decedent’s name individually that does not have a “pay on death” beneficiary designation or a joint title holder. This can be done with or without a last will and testament.

Does a Last Will and Testament Avoid Probate?

No. A last will and testament has no power of transfer, but rather is a set of instructions from the decedent as to how they would like their probate assets distributed after death. The Court will review the last will and, if it considers it to be validly executed, follow the instructions laid out in the document to distribute the assets to the decedent’s beneficiaries.

What Do the Courts Consider a Validly Executed Last Will and Testament?

Fla. Stat. §732.502, includes that a last will must be signed by the decedent and two (2) witnesses to be enforceable. It is preferred that the last will be notarized, but if it is not, there are provisions for the acceptance of the last will by the Court for the purposes of probate. If you have questions, the attorney will advise you on any concerns you may have.

What Happens to The Original Last Will and Testament Document?

Pursuant to Fla. Stat. §732.901, the original last will and testament is to be deposited with the clerk of the court in the county where the decedent lived within 10 days of the date of death. A death certificate (without the cause of death) should accompany the last will. If it has been longer than 10 days, please do not panic. You can still deposit the last will and death certificate to comply with the statute and our office can assist with this requirement.

Is There a Reading of The Will?

No. The family members do not gather to have an attorney read the last will and advise family members of their inheritance. However, a copy of the last will is to be provided to beneficiaries listed in the document during the probate process.

What if There Is No Last Will and Testament?

If there is no last will, then the probate is “intestate” and follows Fla. Stat. §732.102 and §732.103. Each case is specific to the decedent’s family relations. Generally, assets fall to the surviving spouse, the children, and grandchildren (or a combination thereof), then to the parents of the decedent, and then to the decedent’s siblings, and so on. If you have questions, the attorney will advise you on any concerns you may have.

What Assets Go Through Probate?

Generally speaking, probate assets include those owned by the decedent at their time of death that were in their name individually (without a joint title holder) and do not have a “pay on death” beneficiary designated.

Where Is the Probate Filed?

The probate matter is filed in the county where the decedent lived at the time of their passing.

If the decedent is not a resident of Florida but owned real property here, then the probate is filed in the county where the property is located.

Will I Be Required to Attend Hearings in Florida for The Probate?

Generally, any hearings in uncontested probate matters are handled via video or telephone conference. Also, most documents can be signed electronically, sent via email or hard copies mailed for signature.

What Are Creditor Claims?

If the decedent had debts at the time of their passing, any “reasonably ascertainable creditor” should be notified of the probate matter. The attorney takes care of this notification during the probate process. “Reasonably ascertainable creditors” are determined by review of the decedent’s incoming bills, any bills already received by the decedent prior to their passing, review of the bank statements or check books, etc.