Probate

Probate is something just about everyone has heard about, but few understand.  For those who have gone through probate, many will say it was an experience they hope never to repeat.  Unfortunately, probate cannot always be avoided.

The following information is provided to give you a basic understanding of what the probate process is and how it generally works in Florida. This information does not, however, even begin to scratch the surface of what is a very complex probate system. It is for this reason you need an attorney and law firm with years of experience in probate, with the skills and knowledge to complete probate in a timely and cost-effective manner. At Marshall Law, P.A., probate is one of the few areas of law we regularly practice, meaning you will be working with a lawyer and firm that can make a difficult probate process much easier than it otherwise would be.

If you have a probate situation, or if you have any questions about probate following a review of the information provided below, then do not hesitate to contact us at (352) 432-8859. We are here to meet all your probate needs.

Why Contact Marshall Law, P.A.?

As you read through the information provided on this page, keep in mind that at Marshall Law, P.A., we have been handling Florida probate cases since 2006 and can guide you through the process with ease.  Although probate is never an enjoyable experience given the circumstances surrounding the fact someone has died, we can make sure the probate process moves forward quickly and with as little interruption to your life as possible.

Contact Marshall Law, P. A.  today  at (352) 432-8859to discuss your particular probate issue and how we can assist you navigate this process efficiently and effectively.

What is Probate?

Probate is the judicial process of transferring the assets of a deceased person to their heirs (a person who dies without a Last Will and Testament) or beneficiaries (persons named as inheritors in a Last Will and Testament).

All Florida probate cases are handled at the Circuit Court level; there is a Circuit Court for each Florida county and these circuit courts hold exclusive jurisdiction over all probate cases.

The probate case will be used to determine whether a Last Will and Testament is valid and should be used in determining who will inherit assets from the decedent’s estate (in the absence of a Will the decedent’s heirs are determined by state law), identify assets subject to creditor claims versus assets exempt from creditor claims, identify creditors entitled to receive payments from the decedent’s estate, and oversee the distribution of such assets to those entitled to receive them.

The amount of time required to complete probate, as well as the procedures to be followed, are dependent on the “type” of probate case opened.  The following is a breakdown of the different types of probate cases available under Florida law, as well as an estimated timeline to complete the probate process.

Distribution without Administration

(Section 735.301, Florida Statutes)

When is it used?

If the decedent dies with non-exempt assets the value of which are equal to the cost of funeral expenses (not to exceed $6,000) and reasonable and necessary medical bills incurred by the decedent in the last 60 days of their last illness, then an interested person may submit a letter or affidavit to the Circuit Court requesting a Judge order the distribution of the assets to those entitled to receive them.  Assets exempt under Section 732.402, Florida Statutes and the Florida Constitution are also included. 

What are the requirements?

 An interested person can prepare a letter or affidavit on their own which lists of the assets, the parties involved and why the estate qualifies for disposition without administration.  Although the Clerk of Courts is prohibited from providing legal advice, many Clerk of Court websites provide a sample letter or affidavit that can be used by an interested person.  Employees of the Clerk of Courts will not, however, assist with preparing this letter or affidavit.

An attorney is not required for this type of probate case.  Nonetheless, an attorney can be beneficial in helping to identify assets considered exempt under the Florida Statutes and Florida Constitution.  An attorney can also be helpful in preparing the letter or affidavit that must be submitted to the court as the assigned Judge will only issue the requested order if the Judge is satisfied the requirements disposition without administration are satisfied.

Summary Probate Administration

(Section 735.201, Florida Statutes)

When is it used?

Summary Probate can be used when:

  • The non-exempt assets of the decedent do not exceed $75,000.00; or
  • The decedent has been dead for more than 2 years.

 The only caveat is that the decedent’s Last Will and Testament must not direct the probate court to use Formal Probate (see below). 

 What are the requirements?

A Summary Probate Administration petition must contain all the information required by Florida Probate Rule 5.530, which includes, but is not limited to:

  • Names and addresses of the decedent’s spouse and heirs (when no Will)
    or beneficiaries (named in a Will);
  • List of all assets subject to probate along with their estimated values;
  • Statement regarding venue;
  • List of all known and reasonably ascertainable creditors along with the provision
    for payment of their creditor claims in accordance with the class of their claims;
  • Statement regarding whether the decedent had a Last Will and Testament along with information to confirm it was validly executed and should be admitted to probate; and
  • A breakdown of how assets will be distributed and to whom.

 The actual number of issues to be addressed in the petition submitted to the court may be more extensive than listed above depending on other issues present in the estate and local court rules.  Furthermore, the petition must either be signed by all interested parties or served by Formal Notice (another legal pleading) on all interested parties.  Issues pertaining to the decedent’s homestead property and other exempt assets must be addressed in an additional pleading.

Summary Probate Administration in Florida is not “form based”; there are no forms to be downloaded and filled in as is standard in many other states.  Instead, each summary probate petition is drafted specifically to the probate case at hand.  Failure to satisfy the exacting standards set forth in the Florida Probate Code, the Florida Probate Rules and Circuit Court Rules may result in extensive delays, court hearings and/or outright rejection of the petition.

 Although the Florida Probate Code does not require an attorney for summary probate administration, the pleadings required for summary probate are complex and the Circuit Judge assigned to the case has discretion over whether to accept pleadings prepared by a non-attorney or direct the petitioner(s) to retain an attorney to prepare the pleadings in accordance with all legal requirements.  It is recommended an experienced probate attorney be retained as this will greatly increases the likelihood the summary probate process will be handled quickly and efficiently.  In many cases, an experienced probate attorney can get you through the probate process without a single court appearance, which is beneficial if the petitioner and/or heirs reside in other states. 

 If an attorney is retained and all matters are properly addressed, summary probate administration could be completed anywhere from 2 – 4 months after the probate petition is submitted to the court.  Of course, the actual time it takes to complete is dependent on multiple factors, especially creditor claims and if dealing with heirs who disagree with how the estate is to be distributed.

Formal Probate Administration

(Chapter 733, Florida Statutes)

When is it used?

Formal Probate Administration is required when the decedent’s estate does not qualify for the other 2 forms of probate administration. 

What are the requirements?

 An attorney is required for all Formal Probate Administration cases.  The attorney works with the petitioner(s) to prepare the pleadings necessary to have a Personal Representative (often called an “Executor” in other states) appointed to oversee the administration of the estate.  A person nominated as the Personal Representative in the decedent’s Last Will and Testament is given preference in appointment, but if the decedent died intestate (without a Will) the person entitled to appointment as the Personal Representative is determined by statute.  If more than one person is entitled to appointment, or if the nominated person is unqualified, the Judge has discretion over whom to appoint as Personal Representative. 

 Since an attorney is required, the attorney will be responsible for preparing all pleadings necessary to complete the Formal Probate process.  A breakdown of the pleadings necessary for Formal Probate is too varied and complex.  Instead, Formal Probate is best understood by reviewing the different phases the probate estate will go through.   

Phase One (1 – 3 months)
Phase One begins with the filing of the petition to appoint the personal representative and admit the Last Will and Testament of the decedent (assuming the decedent had one).  From the submission of the petition to the issuance of the order appointing the personal representative and admitting the Will (if applicable) can take anywhere from 1 – 3 months to complete. 

Phase Two (3 – 5 months)
After a Personal Representative is appointed, the Personal Representative (through their attorney) must publish a Notice to Creditors in a newspaper serving the county in which the probate case is pending.  This publication runs once a week for 2 weeks.  All “known or reasonably ascertainable” creditors must be sent a physical copy of the Notice to Creditors.  A creditor loses the ability to file a claim against the decedent’s estate 3 months after first publication or 30 days after receiving physical service, whichever is longer.

During Phase Two the Personal Representative will work with their attorney to prepare and file an Inventory identifying all assets of the estate and their estimated values.  The Inventory is due 60 days after the Personal Representative is appointed, and must be sent to all heirs or beneficiaries of the estate.

 If the decedent owned exempt property the Personal Representative and their attorney will prepare and file petitions asking the Circuit Court to declare such assets as exempt from the claims of creditors.  When dealing with homestead property, even before Phase Two is complete the Judge can issue an order distributing the homestead property to those entitled to receive it; this Order serves as the title establishing who owns the property following the decedent’s death.

Phase Three (2 – 5 months)
In Phase Three the Personal Representative will work with their attorney to negotiate and settle all creditor claims filed in the probate estate.  Once all creditor claims are resolved and each creditor has either signed a release or withdrawn their claim, then the Personal Representative and their attorney will prepare two important documents: (1) Petition for Discharge; and (2) Final Accounting.  These pleadings confirm Phases One and Two have been completed and sets out those assets available for distribution and who will receive such assets.  These pleadings are filed with the court and sent to all heirs or beneficiaries; these recipients have 30 days from receipt to file objections otherwise they lose the ability to object to the planned distribution(s).  Once the objection period has lapsed, or objections filed have been resolved, the Personal Representative will distribute the assets, collect receipts from each recipient acknowledging receipt of their share of the estate, and then file those receipts and a confirmation statement with the Court.  Only then will the Judge issue the order discharging the Personal Representative and closing the estate.   

It is not uncommon for Formal Probate estates to take anywhere from 9 months to a year to complete; in some circumstance such cases may be open for years if litigation is involved.  Attention to detail and having an attorney who understands the probate system is vital to making this process move forward quickly and efficiently.

Ancillary Probate Administration

(Chapter 734, Florida Statutes)

When is it used?

Occasionally someone living in another state will die owning property subject exclusively to Florida law; this is almost always related to a decedent who owns Florida real property (e.g.: vacation home, orange grove, etc.).  In these situations, a probate estate must be opened in Florida, and the Florida court will require the filing of various pleadings from the probate court in the decedent’s home state in order to verify the validity of the decedent’s Will (if applicable) and the qualifications of the Personal Representative.

Despite what you may read elsewhere online, the “Full Faith and Credit Clause” of the United States Constitution does not apply with respect to the probate of real property (land or its equivalent) in one state by a court located in another state; a Florida court has no authority to order the distribution of land in Ohio, and vice versa. 

 What are the requirements?

 If the property subject to Florida probate is valued at $50,000 or less, then a short-form ancillary probate process may be used that is similar to Summary Probate.  Otherwise, following review of the authenticated pleadings submitted from the probate estate located in another state, the Florida Court will appoint a Personal Representative and the ancillary estate will be handled in a manner similar to Formal Probate.   

Can I avoid Probate?

Yes, there are multiple ways to mitigate or altogether avoid the probate process. The specific method of how to accomplish this goal is based upon multiple factors including, but not limited to, the amount and manner of your assets, your state of residency, your heirs and beneficiaries, etc.

It is recommended you review the Estate Planning section of this website and then contact us at (352) 432-8859 to set a time to meet and discuss your options and to design the best plan for you and your estate.