Unlike other areas of law such as civil litigation or criminal defense, uncontested probate is a process that seldom requires the attorney or client to appear in court. Because of this, the work is done almost exclusively from a distance, either by email, mail or phone, which saves fees and costs for the client. As such, My Florida Probate P.A., handles uncontested probate proceedings throughout the entire state of Florida. It is uncommon for a judge to require an attorney's physical presence at a hearing.
Types of Court Proceedings For Probate in Florida
The following is a brief overview of three types of court proceedings used in Florida to pass title of a decedent's assets to the heirs or beneficiaries.
Please Note: The term "testate" means there is a Last Will & Testament.
The term "intestate" means there is no Will.
The term "decedent" refers to the person who has passed
Summary Administration (Florida Statutes, Chapter 735, Click Here) - may be used in the administration of either a Florida resident's or nonresident's estate, when it appears:
(1) The decedent's Will does not direct administration as required by chapter 733.
(2) In either a testate or an intestate estate, the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors (e.g., homestead exempted property), does not exceed $75,000,
The decedent has been dead for more than 2 years.
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3. A certified death certificate is filed.
A "certified" death certificate is one that is obtained from and certified by an official source, such as Vital Records, the Department of Health, a county clerk, etc.
4. A petition is filed with the court to open probate proceedings.
If there is a Will, the witness signatures are proven to be valid.
Many wills have what is known as a "self-proving affidavit" that attests to the
signatures on it. If this isn’t present a court will request additional documentation.
5. Creditors may be notified and legal notices may be published.
A list of all known creditors is important at the outset of probate. A "Notice to Creditors" may be printed in a local newspaper in order to start the 90 day tolling period for any unknown creditors.
Florida grants exemptions from the claims of the unsecured creditors (e.g., medical debts, credit cards, etc.) against certain assets in the estate, however, if you don't ask the court for these rights, they are not automatically given to you.
6. Expenses and claims are paid.
After all estate expenses and fees are paid or reimbursed to the party that paid them, claims filed by creditors are considered for payment.
7. Accounting is prepared and assets distributed.
The Personal Representative must account to the beneficiaries and other interested parties regarding how they have managed the estate assets during the administration.
8. Estate is closed.
Pleadings are prepared and signed or served on all interested parties attesting that the administration is complete and asking that the personal representative be discharged and released from further responsibility.
This isn’t an all-inclusive list...
But it provides a general overview of how the probate process begins in Florida. Since I quote a flat fee, a great deal of information is gathered during the free initial consultation. This enables me to calculate how much time it will take to complete the case and provide you with a flat fee quote. While this approach may involve a little more time up front, you’ll have a firm fee quote from a Florida probate attorney, at no charge, and with no obligation to move forward.
The hiring of a Florida probate attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This site is designed to provide general information only. Content on this site should not be interpreted as specific legal advice, or the formation of an attorney/client relationship.
Additional Information on Probate in Florida
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Admission of Foreign Will to Record - (Florida Statutes, Chapter 734.104, Click Here) when someone living outside of Florida (a "nonresident" decedent) dies owning real property in Florida and has a Will that is being or has been probated in another state, the estate may qualify to petition the Florida court to admit the decedent's foreign Will to record. Once the foreign Will is admitted to record by order of the Florida court, the foreign Will acts like a deed or muniment of title in the public records transferring the title to the Florida real property to the person(s) named in the Will. This special type of court petition has a very narrow application and should be discussed with an attorney to determine if it is appropriate for the estate you are handling.
Formal Administration (Florida Statutes, Chapter 733, Click Here) - must be used if the decedent's estate does not qualify for Summary Administration (i.e. the decedent has not been dead for more than 2 years and the decedent's assets subject to administration in this state exceed $75,000 and/or the Will requires a Formal Administration by it's terms.)
Disposition of Personal Property without Administration- an abbreviated form of probate available only undercertain circumstances where the total burial costs and the last 60 days of out-of-pocket medical expenses exceed the value of the non-exempt assets of the estate and there is no real property in the estate. It is advisable to discuss utilizing this process with a Florida probate attorney beforehand. Forms to complete this process can be obtained directly from the Clerk of Court's office in the county where the decedent resided at death. A list of all 67 of Florida's Clerk's of Court with contact information can be found here.
Uncontested Probate in Florida
1. The Last Will & Testament ("The Will") is deposited with the court.
If it hasn't been done already, the Will (the original Will with signatures, not a photocopy) is deposited with the Clerk of Court. In Florida, the original Will is permanently held by the Clerk's office.
If probate has already been done in another state, a certified copy of the Will and probate proceedings are requested from the out-of-state court for submission into the Florida probate proceeding.
2. If there isn't a Will, Florida statutes will determine how the estate's assets are to be distributed.
An estate without a Will is called, "intestate." When no Will exists or cannot be found, the estate assets are distributed as such:
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