Probate

Probate is the legal process through which a deceased person's estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid. The court oversees the process to ensure that the estate is properly administered.

Where to File a Probate Petition

The place to file a probate petition (venue) is the county where the decedent resided, or if the decedent is not a Florida resident, where the real property is located.

Types of Probate Proceedings

A library of checklists and some forms can be found by visiting the Eighth Circuit Court’s website.

There are three basic types of proceedings for administering a decedent's estate:

Formal Administration

This type of proceeding is used when there are considerable assets and/or it is necessary to appoint a personal representative to act for the estate. A formal administration must be filed by an attorney licensed to practice law in Florida, unless the personal representative is the sole beneficiary.

Summary Administration

Summary administration may be filed when the value of the entire estate does not exceed $75,000, excluding exempt property, or when the decedent has been deceased for more than two years.

Disposition of Personal Property without Administration

This type of proceeding allows reimbursement to a person who paid for final expenses, which are funeral costs or medical bills that accrued in the last 60 days. Since all claims are barred after 2 years, this type of proceeding must be filed within 2 years from the date of death.

Generally, a disposition of personal property without administration:

  • Must be filed in the decedent’s county of residence
  • Must be filed within 2 years of the decedent’s death
  • Cannot exceed the amount of the funeral bill or $6,000, whichever is less
  • Cannot be used if the decedent owned real estate
  • Cannot transfer loans
  • Cannot release assets from a safe deposit box

The following must be provided along with the petition for disposition of personal property without administration:

  • Itemized, paid funeral bill
  • Paid receipts for any medical expenses incurred 60 days prior to death
  • Death certificate
  • Documents verifying the asset to be released
  • Consents from all persons who paid any part the funeral bill or medical expenses
  • The will, if any (wills must be filed with clerk within 10 days of the notice of death)

If the court determines that the petitioner is entitled to the decedent's assets, the court will enter an order authorizing the release or transfer of the assets.

Legal Representation

Probate procedures can be highly complex, you may wish to consult an attorney before proceeding.

Wills

Per Florida Statute 732.901, the will of a decedent must be deposited by the custodian with the Clerk's Office in the county where the decedent resided within ten days after receiving information of the death of the maker of the will. The custodian must provide proof of the decedent's death (death certificate or death notice). There is no fee to file a will, however, there is a $7.00 fee for issuing a receipt for the will.

A will cannot be deposited with the court for safekeeping if the maker of the will (testator or testatrix) is still alive. A will cannot be the last will and testament until after the testator will is deceased, since a new will can be made any time during the testator’s life.​​​​​

Probate Terms

​Do​mi​cile ​a person's usual place of dwelling, synonymous with "residence"
​Estate ​the property of a decedent that is subject to administration
Next of Kin​ the heirs at law of the deceased person​
Personal Representative​ the fiduciary appointed by the court to administer the estate, sometimes called an administrator or executor in other states​
​Petition a written request to the court for an order​
​Probate of Will all steps necessary to establish the validity of and to admit a will to probate​
​Property any interest in either real or personal property​
​Trustee the person charged with administering a trust​
​W​ill/Codicil a property executed instrument which disposes of a person's property after death​
Guardianship Terms

A guardian is appointed by the court to act on the behalf of a person who has been deemed unable to provide for his or her own well-being. A guardian can act on behalf of a person’s property as well.

​Guardian a person who has been appointed by the court to act on behalf of a ward​
​Incapacitated Person ​a person who has been judicially determined to lack the capacity to manage some of his or her affairs
​Minor a person under 18 years of age​
​Ward a person for whom a guardian has been appointed​
​Nex​t of Kin those who would be heirs at law if such person were deceased​​​​​​​​​​​​​​​​
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