Frequently Asked Questions and Answers: PROBATE

What is probate?
Probate administration is a court process that occurs after an individual dies with assets titled solely in their name. Throughout this process, the decedent's assets are collected, creditors are satisfied by the estate and the beneficiaries inherit the estate assets. The Court will appoint a Personal Representative ("executor" or "executrix") to serve as a fiduciary and manage the estate assets until the assets can be distributed to the beneficiaries.


What is the difference between estate planning and probate?
Probate is the legal process of distributing an estate after a person dies. Estate planning is the action of taking care of your assets before death to ensure that your estate is disbursed pursuant to your wishes. Depending on your estate planning created before death, probate can be avoided.


When is probate required?
Probate is required when an individual dies with assets titled solely in his or her name. The existence of a Will does not eliminate the need for a probate; however, probate can be avoided if an individual died with an estate plan established before death with specific legal documents (including trusts), death beneficiary designations, co-ownership of assets and other Will substitutes in place to avoid probate. Otherwise, an individual's assets can only be transferred to his or her beneficiaries through the probate process, by operation of intestate law (Florida Law) or according to the terms of his or her Will.


Do I need probate with or without a Will?
Probate is still required if an individual dies with or without a Will. In Florida, if you die without a Will, you die "intestate" - your assets are therefore transferred to your heirs at law according to Florida statute via "intestate succession." Conversely, if you die with a Will, you die "testate" - your assets will be distributed according to the terms of your Will to your intended beneficiaries.


Do I need an attorney for probate?
In Florida, you are required to have a probate attorney represent the estate in a formal probate proceeding (in a formal administration). A Personal Representative must be represented by an attorney. An experienced probate attorney will represent the best interests of the estate, Personal Representative and estate beneficiaries. Your probate attorney will also ensure that the administrative proceeding goes as smoothly and as quickly as possible. You are not required to be represented by an attorney if you are filing a Summary Administration or filing for the Disposition without Administration; however, due to the complex nature of Florida probate proceedings, we recommend that you consult with a probate attorney after the death of a loved one to determine what probate, if any, is necessary.


Do I need to appear in Florida to probate an estate?
Florida law does not require for the Personal Representative or estate beneficiaries to appear in Court. Your estate attorney will appear in probate Court on their behalf. For many estate filings, a Court appearance may not be necessary, as much of the Court filings are done through the online Court e-filing system, mail, telephone and fax.


What are "Letters of Administration"?
Letters of Administration are Court Orders issued by the governing probate Court where the decedent's estate is pending. Letters can only be issued after an estate is filed and opened in Court. The estate will be opened where the decedent was domiciled at the time of his or her death. Domicile is an important concept in probate because it determines what property is included in the probate estate. For example, real property is subject to probate in the jurisdiction where it is located, as are tangible and intangible personal property. Letters of Administration grant the Personal Representative the authority and power to begin marshalling the estate assets and administering the estate, which includes locating and preparing an inventory of the decedent's assets, consulting with various financial institutions, and corresponding with the estate beneficiaries.


Can probate be avoided?
Yes, probate can be avoided. Generally, probate can only be avoided if the decedent engaged in estate planning prior to death. For example, during your lifetime, you can create a revocable living trust that will govern the distribution of your assets after your death without the need to open an estate. You can also prepare various Will Substitutes, such as beneficiary designations, re-titling your assets with a right of survivorship, and preparing deeds of title for real property with joint ownership and passage of a present interest to a beneficiary after your death.


Can probate take years?
The probate process can take a period of months to fully administer. For formal administration, the estate proceeding will take at least 3 months (to pass through the requisite creditor's period). For summary administration, the proceeding will be much shorter due to the nature of the estate assets and the number of years the decedent has been deceased. In formal administration proceedings, the probate process may last over a year (or more) depending on involved litigation and case-specific issues that arise during the administration.


When do I file for probate?
There is generally no rush to open a decedent's estate. In Florida, there is no statute of limitations requiring that an estate be opened within a certain amount of time after an individual dies. However, once an estate is filed and opened with the Court, there are numerous Court-imposed deadlines to adhere to throughout the administration. The most significant problem that arises after death is that the decedent's assets cannot be managed (tangible and intangible personal property and real property) in the absence of a Court Order. Therefore, starting the process shortly after an individual dies gives the appointed Personal Representative the power to manage, preserve and secure the decedent's assets to avoid any loss or depreciation.


Does probate happen automatically?
Unfortunately, no, probate does not happen automatically. We advise you to consult with an experiences probate attorney after the death of a loved one to discuss whether probate is required, and if so, which type of probate is appropriate based on the decedent's specific set of circumstances.