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Death is never easy, especially for families and friends affected by the death of a loved one. Dealing with grief and sadness while dealing with the growing list of tasks involving the final needs of the decedent can cause major stress during an already difficult time. A Florida probate lawyer can help surviving family members settle the deceased loved one’s final debts and facilitate the distribution of the decedent’s assets to rightful heirs and beneficiaries.
Certain estate assets, whether listed in the decedent's Will or not, may pass to their rightful beneficiaries outside of any formal process. However, certain other assets must be distributed through a Florida court-supervised process known as “probate.” It is the legal process used to gather information about the deceased person's assets, pay any remaining valid debts, and is often necessary to enable the transfer of assets to surviving beneficiaries and heirs of the decedent's estate.
Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530). It is important to note that Florida law requires the assistance of a Florida Bar licensed attorney for mostly all probate matters. Probate administration is a sophisticated endeavor that requires an understanding of complex Florida law and detail-oriented service throughout the process.
Generally, there are three main types of probate administration in Florida, Formal Administration, Summary Administration, and Disposition of Personal Property Without Administration. Formal administration is primarily utilized for larger estates which consist of probatable assets valued at more than $75,000.00. Summary administration is a simplified court-supervised process for smaller estates, estates where most assets can pass to the beneficiaries without probate, or estates where the decedent passed away more than two years ago. Disposition of personal property without administration applies only in limited circumstances; it is a non-court-supervised administration and is the only type of estate administration that does not require the assistance of a Florida Bar licensed attorney.
When the decedent left a valid Will, probate may or may not be necessary. A Will is a written document, formally signed and witnessed, that meets specific requirements under Florida law. The “testator” is the person making their will; they can name beneficiaries whom they want to receive their assets after they pass away. They may also designate a “personal representative”( also known as an “executor”), who is a person that administers their estate after they pass away. Often, the decedent left a valid Will bequeathing certain assets to specifically identified beneficiaries which require a court order for transfer of ownership. With or without a Will, a decedent’s debt and final expenses often require administration to determine validity, priority, and payment.
When someone passes away without a Will, known as “intestacy,” or if the original document is lost or destroyed, Florida courts must then determine who the personal representative should be, decide the rightful recipients of the deceased person's assets, and govern valid debts that must be paid out of the estate. In an intestate estate, the probate court usually directs distributions and payments of the estate, and Florida's intestacy laws must determine who will inherit the decedent's remaining assets. Florida Statutes Part I, Chapter 732 sets forth precise guidelines on whom may inherit and what portion of the estate they may receive in the case of intestacy.
Probate administration may also become necessary under several less common circumstances. For instance:
- Doubts arise about the validity of the decedent's Will
- The decedent did not properly sign and have witnessed their Will under Florida law
- The original Will has been lost or destroyed
- An unexpected or unplanned asset is added to the estate
- There are no ascertainable beneficiaries or heirs.
Court intervention and supervision are certainly required if the decedent had multiple seemingly valid Wills or Trusts or if someone wants to invalidate or challenge the decedent's Will or Trust.
When a loved one passes away with Florida assets, settling their estate will benefit from and usually requires a Florida Bar licensed attorney. Probate administration is a sophisticated endeavor that requires familiarity with complex Florida law and detail-oriented service throughout the process.
Here at Elder Needs Law, we provide individualized probate services designed to meet the needs of each family. Our staff of dedicated professionals is available to assist you in discussing your loved one’s estate matter. We invite you to contact us with your questions, 24 hours a day, 7 days a week.