Practice Areas

Probate

Many people have heard the term “probate”, but not everybody knows its true meaning. Probate is the process of disbursing the assets and settling the estate of a deceased person through a court supervised process.   A person who has an executed final will, will enter the will into the probate estate.  A person who dies without a will, shall fall under the state’s intestacy laws during the probate process.   The intestacy process will distribute assets of the estate pursuant to Florida Statutes.
Probate is a process of transferring the estate/property of the deceased person to his or her chosen beneficiaries or heirs. The personal representative will have the authority to distribute the assets of the deceased according to the deceased’s instructions.
In Florida, the personal representative can be an individual, trust company or bank (subject to certain restrictions).  However, an individual can only serve as a personal representative only if he is a Florida resident. If the person is not a Florida resident, then he/she can be a spouse, sibling, parent, child or other close relative of the deceased.
The court will generally accept the decedent’s choice of individual or entity to serve as the Personal Representative as long as they are qualified.  However, if the person died intestate (without a Will) or the Personal Representative cannot or is unwilling to serve, the court will refer to Florida Statute 733.301 to determine who to appoint as the Personal Representative. Under this statute, the first right goes to the surviving spouse.  If the deceased was not married or the surviving spouse refuses to serve, then the person who is selected by the majority in interest of the surviving heirs will be appointed.  If these surviving heirs cannot reach an agreement then the court will appoint the heir of the nearest degree.
There are a number of diverse stages within the process of probate. This includes admitting the will to probate, as the validly executed final will. Then, petitions such as appointment of the personal representative must be administered, as well as various other petitions needed.   Notifications must be sent out to creditors, which have a specific amount of time in which to address the court or be barred from making claims against the probate estate.
There are also some cases where the probate court is not needed to administer certain assets of the deceased.  These are not included in the probate, for example homestead property, which passes directly to the heir or heirs.   Also, if the estate is under a statutory amount, then the probate process can be simplified and concluded in a quicker method known as “summary administration”.
When a person writes his or her will, most of them do not even think of probate and most of them do not really understand the importance of probate and estate planning. Probate and estate planning must be a part of study and perceptive before you even write your will. This can be a very confusing phase of person’s life that needs to be understood by everyone. Probate and estate planning is complicated.   When planning for your estate, you should seek the assistance of lawyers and attorneys to maneuver through the complex process of probate court. Hire a probate and estate planning lawyer before writing your will, so you will fully understand probate and its legal processes.