probate & estate Attorneys in Orlando
Types of Court Proceedings For Probate in Florida :
The following is a brief overview of three types of court proceedings used in Florida to pass title of a decedent’s assets to the heirs or beneficiaries. Please Note: The term ‘testate’ means there is a Last Will & Testament. The term ‘intestate’ means there is no will. The term ‘decedent’ refers to the person who has passed away. Summary administration – may be used in the administration of either a Florida resident’s or nonresident’s estate, when: (1) The decedent’s Will does not direct administration as required by chapter 733. (2) In either a testate or an intestate estate, the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors (e.g., homestead exempted property), does not exceed $75,000, or the decedent has been dead for more than 2 years.
Admission of Foreign Will to Record – when someone living outside of Florida (a “nonresident” decedent) dies owning real property in Florida and has a will that is being or has been probated in another state, the estate may qualify to petition the Florida court to admit the decedent’s foreign will to record. Once the foreign will is admitted to record by order of the Florida court, the foreign will acts like a deed or muniment of title in the public records transferring the title to the Florida real property to the person(s) named in the will. This special type of court petition has a very narrow application and should be discussed with an attorney to determine if it is appropriate for the estate you are handling.
Formal administration (Florida Statutes, Chapter 733) – must be used if the decedent’s estate does not qualify for Summary administration (i.e. the decedent has not been dead for more than 2 years and the decedent’s assets subject to administration in this state exceed $75,000 and/or the Will requires a Formal administration.)
An Overview of the Probate Process in Florida
If there is a Will it is deposited with the court. The original will (with original signatures, not a photocopy) is deposited with the Clerk of Court. If there isn’t a will, Florida statutes will determine how the estate is distributed. If probate has already been done in another state, a certified copy of the Will and probate proceedings are requested from that out-of-state court.
A certified death certificate is filed.
A “certified” death certificate is one that is obtained and certified from and by official sources, such as Vital Records, The Department of Health, a County Clerk, etc.
A petition is filed with the court to open probate proceedings.
If there is a Will, signatures are proven to be valid. Many wills have what is known as a “self-proving affidavit” that attests to the signatures on it. If this isn’t present a court will request additional documentation.
Creditors are notified and legal notices are published. A list of all known creditors is important at the outset of probate.
Petitions for exemption rights are submitted. Florida grants exemptions from the claims of the unsecured creditors (e.g., medical debts, credit cards, etc.) against certain assets in the estate, however, if you don’t ask for these rights, they are not given to you.
Expenses and Claims are paid. After all estate expenses and fees are paid or reimbursed to the party that paid them, claims filed by creditors are considered for payment.
Accountings are prepared and Assets Distributed. The Personal Representative must account to the beneficiaries and other interested parties regarding how they have managed the estate assets during the administration.
The Estate is Closed. Pleadings are prepared and signed or served on all interested parties attesting that the administration is complete and asking that the personal representative be discharged and relieved of further responsibility.