Whether probate is required depends upon the type of property the deceased (person who died) owned and how it was owned at the time of passing.
It also depends on in which State the deceased has died in as the laws of the State of Probate will apply accordingly.
The main purpose of probate is to validate a will and distribute the decedent’s estate to its rightful beneficiaries and heirs.
The size of the estate is a factor to initiate the probate process.
In general, it is essential, before the property of the deceased can be legally distributed, to go through probate or, in the case of smaller estates, under the general supervision of the probate court, a much less formal procedure.
Since the law, rules, and procedure for Probate vary in each State, this article will discuss Probate in Florida.
What is Probate in Florida?
So what exactly is Florida probate? In Florida, probate is needed when someone who has resided or owned Florida assets dies and leaves assets behind. There are many different types of Florida probates but a formal administration is a form most people think of when they hear the word probate.
The probate court, with a formal administration in Florida, appoints a Personal Representative (PR) to administer the estate of a decedent. Some states call that individual an executor or executrix.
In Florida, the terms “Personal Representative” is used. Chapters 731 through 735 of the Florida Statutes provide the Florida Probate Code [i].
Why is Probate important?
Probate is expected to pass ownership of the decedent’s probate assets to the beneficiaries of the decedent.
If the decedent left a valid will, it will be useless to pass ownership of probate assets to the beneficiaries of the decedent unless the will is admitted to probate in court.
If the decedent did not have a will, probate is required to pass ownership of the probate assets of the decedent to those who are to obtain them under Florida law.
Probate is also essential to wind up the financial affairs of the decedent and pay taxes.
Administration of the estate of the decedent ensures the creditors of the decedent are paid if certain rules are followed appropriately.
Florida Wills and Probate
If the will of the decedent disposes of all the probate assets of the decedent and assigns a PR, the will control the Florida law’s default provisions.
If the decedent has not had a valid will, or if the will fails in some respect, the names of those who are to receive the probate assets of the decedent, as well as those who are to be selected as the PR of the probate estate of the decedent, will be as provided by Florida law.
How Probate in Florida works when there is no Will?
Florida’s intestacy laws apply to someone who passed away without a valid will. Even if the decedent dies intestate, the probate assets are never turned over to the State of Florida unless no heirs are identified or the assets are unclaimed for a number of years they will be turned over to the State through a process called escheating.
The “heirs” of the decedent are those related to the decedent and described in the statute of Florida which governs the allocation of the probate assets of a decedent who died intestate.
If the decedent died intestate, the probate assets of the decedent shall be allocated to the heirs of the decedent in the order of priority as found in Part I, Chapter 732 of the Statutes of Florida.
How Florida Law protects surviving spouses and children
The surviving spouse and children of the decedent may be expected to receive probate assets from the probate estate of the decedent, even though the will of the decedent provides nothing to them.
The law of Florida safeguards the surviving spouse of the decedent and other surviving children from complete disinheritance.
Limitation Period for Florida Probate
Strict deadlines for filing lawsuits against the estate or personal representative are set.
In general, the estate and the personal representative cannot be held liable for any claim arising two years after a Florida person’s death.
Creditor claims may be barred 3 months after creditors first publish the notice.
Importance of hiring a Probate Attorney in Florida
Florida laws require that an estate’s PR hire a probate lawyer to guide him or her through the process. While it may seem like an additional burden to hire an attorney, an attorney should help make the probate process as effective as possible.
It is in the best interests of the estate and all stakeholders to wrap up probate administration promptly.
The Finity Law Firm can help, whether you are a PR, a creditor, a beneficiary, or an heir affected by a probate process in Florida.
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