Frequently Asked Questions About Probate In Florida

Probate is the name given to the process of gathering a deceased person's assets and using them to pay debts and distribute to beneficiaries.

What is probate?

Probate is a court-supervised process by which a deceased person's assets are collected and used to pay creditors and distribute to beneficiaries. It is also the process by which a person's last will and testament is proved to be valid. If there is not a will, probate is the process by which assets are distributed to beneficiaries pursuant to Florida law. A person who dies without a will is said to have died "intestate."

How long does probate take?

Probate must be open for at least three months, the time allotted for creditors to make claims against the estate. In practical terms, however, even the simplest estate will take five to six months to probate.

Some estates will take longer to probate. For example, if real estate needs to be sold or creditor disputes resolved, the estate will typically take longer than six months to probate.

What are probate assets?

Only certain assets are subject to probate. In general, assets owned solely by the deceased person (the "decedent") at the time of death, or assets owned jointly for which there is no provision for automatic transfer of ownership upon death, are probate assets.

Examples of probate assets include: life insurance or annuity contracts payable to the decedent's estate; bank accounts and other investment accounts solely owned by the decedent; and real estate titled solely in the name of the decedent or in the name of the decedent and another person as tenants in common.

What are examples of non-probate assets?

Examples of non-probate assets include: life insurance or annuity contracts payable to a specific beneficiary; bank accounts and other investment accounts with a payable on death (POD) provision or held jointly with rights of survivorship; and real estate owned by husband and wife as tenants by the entirety or real estate owned by the decedent and another person(s) as joint tenants with right of survivorship.

What is a personal representative?

In Florida, an executor, executrix, administrator or administratrix is known as a "personal representative." The personal representative is the person, bank or trust company appointed by the court to be in charge of administrating the deceased person's estate.

What does the personal representative do?

Some of the things for which the personal representative is typically responsible include: identifying, collecting, valuing and keeping-safe the probate assets; identifying and notifying potential creditors that their claims must be filed; hiring attorney and other professionals such as accountants and appraisers; filing tax returns and paying taxes; paying claims against the estate; and distributing assets to beneficiaries.

Should the personal representative hire an attorney?

Yes. In fact, Florida law requires a lawyer be involved for almost all probate administrations. A lawyer will advise the personal representative on the probate process and represent the estate's interests in probate proceedings. Even in small, straight-forward estates, issues arise that non-lawyer are not familiar with. Having an attorney available to explain these issues and provide guidance to resolution can be invaluable.