When someone dies, his or her assets will not necessarily be distributed automatically to those entitled to them. If a person dies with a Will that devises his or her assets to you, then probate is necessary to carry out the instructions of the Will. Similarly, probate becomes necessary when a person dies owning anything in his or her name individually. This blog discusses the things that you need to receive your devised or inherited property that is in Florida and the process involved.
- Decedent's original Will.
- The Will's self proving affidavit. If it is not available, then an oath from one of the following will be required: a witness to the Will, the nominated personal representative, or any disinterested person who believes the Will is genuine.
- Probate's filing fee and advertising costs. These fees vary based on the type of proceeding and county of the decedent's residence.
NOTE: In Florida most probate cases require hiring an attorney.
- The custodian of the Will must deposit the original Will in the office of the clerk of Court within ten days of receiving information that the person is deceased. The custodian should deposit the Will with the Clerk of the Circuit Court in the county where the decedent resided. The custodian must also supply the decedent's date of death or decedent's social security number to the clerk upon deposit of the Will, if this information is available.
- There are three basic types of proceedings to administer a decedent's estate and the one used depends on the size of decedent's estate:
- a. Formal administration: used when there are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate.
- b. Summary administration: used when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.
- c. Disposition of personal property without administration: used to request release of the decedent's assets to the person who paid for final expenses such as funeral bills or medical bills that accrued in the last 60 days.
- Once Probate is opened and the appropriate proceeding has been selected, the court appoints a personal representative for decedent's estate. The court gives deference to the person nominated as the personal representative in decedent's Will.
- The personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's Will and the Probate Code as expeditiously and efficiently as is consistent with the best interest of the estate.
- The personal representative can use decedent's estate to pay for the costs involved in probate and must notify decedent's creditors so that they can file their claims against decedent's estate.
- After paying decedent's creditors, the personal representative distributes the remainder of decedent's assets to the beneficiaries entitled to them.
- After the administration of decedent's estate has been completed, the personal representative is discharged.
What if There is Not a Will?
If there is not Will, probate might still be necessary to distribute decedent's assets. Probate proceedings are initiated by filing a petition seeking to administer decedent's estate. A filing fee will also be required. Decedent's assets will be distributed according to Florida Statutes section 732.102, 732.103, and 732.104.
Contact a Florida Estate Planning Attorney
Going through the probate process can be a frustrating and daunting scenario. The best thing to do is to hire an estate planning attorney to assist you with this issue. Moreover, an estate planning attorney can help you plan your estate to assure an efficient distributions of your assets. For an estate planning attorney in Florida, contact the Law Office of David M. Goldman PLLC by dialing the number (904) 685 - 1200, or by clicking the "Contact Us" tab at the top of this page.