Probate Basics Under Florida Law

Probate is a title proceeding required to transfer assets.  The probate process is also known as an estate administration.  A deceased person’s probate estate consists of assets held by the person in his or her name alone, or held with another as a tenant in common, or payable to the deceased person’s estate upon death.  If there are no assets for probate, then there is  no probate estate and probate is “avoided.”  But, even though a probate may not be needed to transfer assets, it may be needed for other purposes. See Fla. Probate Rule 5.210.

A will does not avoid probate.  If a person left a will, it needs to be filed in the probate court with jurisdiction over the county in which the deceased person lived at the time of death.  In Florida, probate court is a division of the circuit court.  The will should be filed with the court within ten days. 

If a person dies without a will, a petition must be filed with the court to have the deceased person’s property distributed according to the state’s laws.  These proceedings are known as “intestacy proceedings.”  During the proceedings, the judge will appoint a personal representative to supervise the distribution of the property. 

A personal representative is an individual or entity that gathers all the probate assets and administers the estate according to statutory law, court direction, and/or instructions contained in the will.  The personal representative usually must hire an attorney to help in the estate administration.  The entire probate process can take anywhere from six months to a year, or longer for larger, complicated estates.

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