What is Probate?
Probate is a legal process through which the assets of a deceased person are distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are disposed of and proper distribution is made.
Why is Probate necessary?
Probate is necessary whenever a deceased person leaves assets in their name alone. A party then files a petition for probate that allows distribution of the decedent's assets. Probate is used for the following:
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1. To collect and determine the estate's assets and to protect the assets of the estate. |
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2. To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes. |
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3. To legally transfer ownership of real property. |
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4. To determine who is entitled to share in the estate and to distribute the property to the proper parties. |
What are the types of Probate proceedings?
There are 4 basic types of proceedings for administering the decedent's estate:
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1. Summary Administration: May be filed when the value of the entire estate does not exceed $75,000, or when the decedent has been dead for more than 2 years. |
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2. Formal Administration: Proceeding used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the Personal Representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the Personal Representative so that he/she may complete the administration of the estate. |
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3. Disposition of Personal Property Without Administration: This type of proceeding is used to request release of the assets of the deceased to the heirs or other qualified parties. Under Section 735.301 , Florida Statutes, the estate must consist of personal property exempt from claim of creditors (see Section 732.402 Florida Statutes), and nonexempt personal property that does not exceed the sum of preferred funeral expenses (which are now $6,000) and reasonable and necessary medical and hospital expenses from the last 60 days of the last illness. There cannot be any real estate in the estate. 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
- -if the decedent has a will, it must be filed with
- the Clerk of the Circuit Court within 10 days of
- the notice of death
- -filing fee as set by Florida Statute
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4. Petition to Admit Foreign Will: The purpose is to transfer title of real property in this state of a nonresident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting will to probate. This petition may only be filed if the decedent has been dead for more than two (2) years or at any time after the domiciliary PR has been discharged if there has been no proceeding to administer the estate of the decedent in this state. |
What is a Will?
A will is a document executed by a person which expresses that person’s wishes as to how property is to be disposed of after the person’s death. A will usually names a personal representative to administer the estate.
Is my Will valid even though it was drawn up in another state?
As long as it is valid in the state in which it was drawn up, it is valid in the state of Florida.
When and where should my Will be filed?
The custodian of the will must deposit the will with the Clerk of the Circuit Court having venue of the estate within 10 days after receiving information that the person is deceased. The custodian must supply the testator’s date of death or social security number to the Clerk upon deposit of the will.
Is an attorney needed to deposit a Will?
No. However, the custodian of the will may want to consult with an attorney before filing so that he or she may determine whether probate proceedings will be necessary. A Will cannot be deposited with the court for safekeeping if the Will Maker is still alive.
What happens if a person dies and has left no will?
The property will be distributed in accordance with Florida law.
What happens if there is a will filed but no personal representative has been named?
It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate.
What does Probating a Will mean?
It means taking all legal steps necessary to assure a will is valid and to admit the will to probate.
Can a copy of a Will be probated?
Yes, through an attorney that is knowledgeable in probate.
Do I have to have an attorney to do a Probate?
Every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A personal representative who is an attorney admitted to practice in Florida may represent himself/herself as personal representative.
What is a Caveat?
A caveat is a written notice filed with the Clerk by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice.
How do I get Letters of Administration?
Letters of Administration are issued through the opening of a Formal Administration.
How are Probate proceedings initiated?
Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed personal representative and/or to distribute property depending on the size and complexity of property. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.
Can you tell me if there is a case open on my father, or a friend, etc?
We do not do searches over the phone. You may locate this information through the Public Records section of our website: www.stlucieclerk.com, or you may mail in your request. You must send in a self addressed, stamped envelope with a search fee per name and last known address, or social security number of deceased, or date of death. Please refer to the fee schedule on our website for search name costs. Please mail your request to: Clerk of Court, Probate Division, PO Box 700, Fort Pierce, FL 34954.
How do I get into a deceased person's safe deposit box?
If you are entitled to obtain access to the safe deposit box, you must go through an attorney to do so.
Where can I obtain Probate forms? Disposition of Personal Property without Administration Forms and Statements of Claim Against an Estate are available on our website: www.stlucieclerk.com/forms/forms.htm or in our Probate Division which is located at 201 South Indian River Drive, 5th Floor, in downtown Fort Pierce.
For more information or assistance with Probate-related questions not answered in this pamphlet, please call (772) 462-6920 or email
flowersm@stlucieclerk.com
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