Probate Frequently Asked Questions

Probate is the legal process that follows the death of an individual. Probate serves several functions, including:

1. Authenticating the decedent’s Last Will and Testament (if applicable)
2. Identifying, valuing, and transferring estate assets
3. Allowing creditors of the estate to file claims
4. Ensuring that all taxes owed by the decedent and/or the estate are paid

Some type of probate is almost always required; however, formal probate may not be necessary. Like most states, the State of Florida offers an alternative to formal probate for small estates without complex assets. Disposition without Administration may be possible, in lieu of formal probate, if the decedent’s estate is made up of only personal property of little value (the limit is subject to change).

One of the first things that must be done following the death of an individual is to determine which property is probate property and which property is non-probate property. Non-probate property bypasses the probate process and may be distributed right away. Common examples of non-probate property include:

1. Assets held in a trust
2. Proceeds of a life insurance policy
3. Funds held in accounts designated as “payable on death (POD)” or “transfer on death(TOD)”
4. Certain jointly held property
5. Funds held in certain retirement type accounts

If the decedent executed a Last Will and Testament prior to death, the person named as the Executor of the Will is who will oversee the probate of the estate. If the decedent died intestate, or without a Will, a qualified adult can volunteer to be the Personal Representative of the estate and oversee the probate process.

If the decedent left behind a valid Will, the terms of the Will dictate how the estate assets are distributed. If the decedent died intestate, the Florida intestate succession laws will decide what happens to the estate assets. In that case, only a spouse and/or close relatives will likely inherit from the estate.

Although every probate process is unique, there are some common steps, including:

1. Locating an original copy of the decedent’s Last Will and Testament and obtaining certified copies of the decedent’s death certificate.
2. Submitting the Will along with a petition to open probate with the appropriate court.
3. Inventorying and valuing estate assets.
4. Notifying creditors that probate is underway
5. Evaluating claims submitted by creditors
6. Paying valid claims
7. Litigating any disputes
8. Paying any state and/or federal taxes due
9. Transferring the remaining assets to the intended beneficiaries and/or heirs of the estate.

The amount of time it takes to probate an estate will depend on a number of factors, including the size and complexity of the estate, the abilities and dedication of the Executor/PR, and whether or not any challenges are filed against the estate. Furthermore, creditors have two years to file a claim against an estate in Florida; however, the Executor/PR can shorten that time frame to 30 or 90 days by properly notifying creditors or publishing a notice to creditors. In any case, probate cannot be concluded until the appropriate statute of limitations on creditor claims has expired.