5 Fast Facts About Florida Probate
So what exactly is probate? It’s a term describing the processing and distributing of someone’s assets after they’ve passed away. This process is generally supervised by a circuit court judge, and involves identifying all of the decedent’s assets, using them to pay probate fees, funeral expenses, and debts, and distributing the remainder to the decedent’s beneficiaries, either as stipulated in the decedent’s valid will, or according to the Florida statutes governing intestate succession. Determining whether the will is valid and confirming the intended identities of the beneficiaries is also accomplished during probate. In short, probate is the process of sorting out the decedent’s finances, and, if there’s anything left, determining how to distribute the remaining assets.
- Only “probate assets” are administered during probate. Probate assets are those that were owned solely in the name of the decedent at their time of death, or that were jointly owned but lacked a provision automatically transferring ownership to the joint owner in the event of death. If you have questions about which assets qualify as probate assets, it’s important to talk to an experienced Florida probate attorney, as they can assess your specific circumstances.
- The will must be presented during probate. If the decedent has a will, it must be presented during probate in order to be determined valid and considered in the distribution of the decedent’s assets. Even if the decedent has a valid will, if it is not considered during probate court, it will not have any effect in determining how the decedent’s assets are distributed, and the court will instead rely on intestate succession, as if there were no will at all.
- If there is no will, assets are distributed in order of priority. As stated above in number 2, when the decedent has no will, or no valid will, their assets are distributed in accordance with intestate succession. The Florida statutes on intestate succession dictate the order of priority for distribution of assets to the decedent’s heirs.
- Probate is conducted in the county where the decedent resided at the time of death. If the decedent had a valid will, the person holding the will has 10 days from the time they learn of the decedent’s death to file it with the clerk of the circuit court in the decedent’s county of domicile. Even if you live in another area than the decedent, it’s important to hire representation from their local area to ensure that the attorney is familiar with all relevant estate law, regulations, and probate requirements and processes. If the decedent is a non-resident of Florida but owns real estate in Florida, the probate can be contested in the county of the real property.
- Judge gets final say on the decedent’s “personal representative.” If the decedent nominated a personal representative (a.k.a. Executor or Administrator of the Estate) in their will, the circuit court judge will determine whether the nominated individual meets the statutory requirements necessary to serve as a personal representative. If you would like to appoint a personal representative in your will, consulting with an experienced attorney can ensure that you select someone who meets all statutory requirements, and that your selected representative will be upheld by the judge.
What to do Next
If you recently lost a loved one and have questions or concerns about the probate process, or if you want to ensure that you have a valid will in place, it’s important to speak with an experienced West Palm Beach probate attorney as soon as possible. Contact the Law Offices of Larry E. Bray today, and schedule a consultation.