The term probate explains the legal process of allocating to beneficiaries of the decedent the estate of someone who is now deceased.

Probate is designed to ensure that the assets and property of the decedent are allocated in compliance with their final wishes, as set out in their will.

The question which most people ask is that does a Will need to be probated in Florida?

A Will, even a validly created one, is not on its face a valid legal document until it is accepted by a court with proper jurisdiction in relation to the residency of the decedent.

A piece of paper with the words last will and testament on it

Does a Will have to be probated in Florida?

1. Probating the Original Will

The original will is required to be probated according to Florida law. If the original cannot be located, it is presumed to have been destroyed to revoke that will.

Under Florida Statute 732.901, the original will is to be deposited with the court clerk where the deceased lived within 10 days of receiving the testator’s death information.

If the original will cannot be traced but the presumption of revocation is overcome, testimony under Florida Statute 733.207 of at least one disinterested witness will be needed to admit the will to try if a copy can be located. If the copy remains lost, two witnesses are required.

2. Notices to Beneficiaries/Creditors

Florida law requires that the beneficiaries named in the will, as well as surviving spouses, receive a Notice of Administration.

The Administrative Notice provides valuable information, such as the time limit to challenge a will’s validity, and notifies the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowances.

A Notice to Creditors must be provided to known creditors, stating that the creditor has 90 days to file a creditor claim in the estate.

Notice to creditors must also be printed in the local newspaper, alerting such creditors to the deadline for their claims.

3. Taking custody of the assets of the deceased

After the estate is open, and letters of administration are sent to the PR, the PR will take custody of the deceased’s assets which are properly part of the probate estate.

For bank accounts, investment accounts, annuities, and premiums payable to the probate estate, the PR will reinstate those accounts in the estate ‘s name and/or transfer such accounts into new accounts in the estate ‘s name.

Positions in stocks will usually be converted to cash (or reduced) to prevent any losses on the assets of the estate. Real estate would be insured and secured accordingly.

4. Taxes, Creditors and Lawsuits

If the estate is subject to the estate tax, it will need to close the estate for a minimum of two years, generally longer.

If someone challenges Will’s validity, that process could also take years and be very costly.

If the estate has to deal with real estate, business interests, patents, art, or a lawsuit for wrongful death claim, this may bind the estate for years.

Some estates have all those problems, and more.

If the estate has none of these problems, it would be possible to close the estate in less than one year, often even more quickly.

5. Distribution once the Probate process of the Will concludes

Once all the complications and difficulties are handled, the PR eventually makes a distribution to the beneficiaries. During the administration of the estate, the PR may make intermediate distributions or may wait and then make a final distribution to the beneficiaries.

The PR can submit a distribution plan and final accounting to the beneficiaries for final distribution, to which they may object.

The PR could only issue an informal accounting and informal distribution plan in estates with good harmony, to which they could agree by signing a waiver or similar document

6. Discharge

The PR shall file a final report, distribution schedule, and discharge petition with the probate court after the estate administration.

If the beneficiaries waived the accounting and distribution plan, otherwise those documents will not be filed.

At the probate court, the clerk’s office will study the discharge petition to ensure that all criteria of a proper probate administration have been met, such as filing the inventory, paying all creditor claims, and filing either the final accounting or distribution plan.

Florida Probate Attorney

The process for probating a will to understand and pursue can be complex for an ordinary person. An experienced Florida probate attorney can guide you in the process and handle your case. For more information, speak to our probate attorney at the Finity Law firm.

References:

  1. Consumer Pamphlet: Probate in Florida | The Florida Bar
  2. How To Probate a Will in Florida | Probate Stars

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