Probate

  • In a nutshell, probate is a legal process, which involves the passing of assets from the dead to the living. If one dies with a will, the assets pass to beneficiaries named in that will. Absent a will, assets pass to the heirs as specified by Florida Statute 732. The process often includes notifying the creditors of the deceased, allowing those creditors to file claims against the estate in hopes of getting paid. Beneficiaries or heirs will receive the remaining assets once all the creditors are paid.

    Florida essentially has four types of probate. Which one applies, depends on the unique facts of each case.

    Formal Administration

    A Formal Administration probate is typically required if the deceased has been dead less than 2 years OR the entire estate subject to administration in this state, less the value of property which is exempt from the claims of creditors, exceeds $75,000. Per Florida Statute 733.101, the probate is filed either in the Florida county where the deceased resided or the county in which the deceased owned real estate.

    Summary Administration

    Florida Statute 735.201 allows for summary administration, but only if the deceased has been dead more than 2 years OR the entire estate subject to administration in Florida, less the value of real estate and personal property which is exempt from the claims of creditors, does not exceed $75,000.​ Per Florida Statute 733.101, the probate is filed either in the Florida county where the deceased resided or the county in which the deceased owned real estate. Summary administration typically takes less time and money than a formal administration, but is not available in all cases.

    Ancillary Administration

    Florida Statute 734.102 requires ancillary administration if the deceased lived outside the state of Florida but owns property in Florida. Per Florida Statute 733.101 (b), the probate is filed in the Florida county in which the deceased owned real estate.

    Depending on the facts of each case, ancillary administration may be a formal administration or a summary administration.

    Disposition without Administration

    Per Florida Statute 735.301, neither formal or summary administration are required if the deceased dies only owning exempt personal property which is exempt from the claims of creditors, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

    Individuals can dispose of personal property without the assistance of a lawyer.

  • Probate is necessary for assets that are "probatable". This is even the case if one dies with a will. Assets subject to probate include:

    Assets that are not jointly owned by someone other then the deceased, including bank accounts, real estate, and brokerage accounts

    Real estate if the deed does not include the deceased's marital status or if co-owned with a spouse or another person who has predeceased the other spouse or owner, or, if co-owned, the deed does not include the words, "joint tenants with rights of survivorship"

    Assets that do not include named beneficiaries such as life insurance policies, IRAs, 401-Ks, or 403-Bs.

    These assets must be probated even if an individual dies with a will. If an individual dies with a will, the will dictates the beneficiaries of these assets. If an individual dies without a will, Florida Statute 732, Part 1 dictates the beneficiaries.

  • If an original will is lost and all that remains is copy, the presumption under Florida law is that the deceased revoked the lost will. However, this presumption can be rebutted.

    Florida Statute 732.502 states that a will is properly executed, if it is signed by the person making the will (referred to as a “testator”), at the end of the will and in the presence of two witnesses. The testator and both witnesses must be in the presence of the testator and each other at the time of signing. Though Florida Statute 732.504 allows a beneficiary of a will to act as a witness, this creates a problem if the original will is lost.

    To rebut the presumption that the original will was revoked, the law requires a disinterested witness to the will provide testimony that the two witnesses signed the will in the presence of each other and the testator. However, if a witness to a will is also a beneficiary of the will, that witness is an interested witness and cannot provide the necessary testimony. Thus, if the second witness was a disinterested witness but cannot be located, overcoming the presumption that the testator revoked the will, is extremely problematic. The best practice is to have two witnesses, neither of whom are beneficiaries under the will.

  • Though Florida probate rules require a probate to be completed within one year, we can typically complete a formal administration within 6 to 9 months. This same timeframe applies to an Ancillary Administration.

    There can be circumstances however, under which it may take longer than one year. In such cases, the time to complete it can be extended, but only by a court order signed by a judge.

    As summary administration does not require all the formalities of formal administration, these cases can often be completed within 30 days. We have been able to complete summary cases in as little as 8 days.