Frequently Asked Questions (Probate FAQ)
This Florida Probate FAQ was created to answer questions we are asked almost daily. It might save you a bit of consultation time, but we’re happy to answer all of these during your free consultation as well.
- See also: Probate Case Scenarios & Avoiding Probate
What is Probate?
Probate administration is a court process.
- Assets are collected, creditors are paid and beneficiaries receive whatever remains.
- Assets = Real Estate or Personal Property
- Two kinds of “Probate”: Summary & Formal Administration
- The existence of a Will does not eliminate the need for probate
- In Florida, “Personal Representatives” are in charge of “probating” the estate
- Personal Representatives must have attorney representation (attorneys do most of the work)
- Most probate cases are filed by mail with telephone hearings (so your attorney does not have to be in the county where probate is required)
What if there is no Last Will & Testament?
If there is no Last Will & Testament (Will), then the assets may pass by what’s called “intestate succession”. Intestate means that there is no Will. Florida Statutes set forth who is entitled to inherit estate assets if the deceased died without a Will.
Typically, by presenting a court order authorizing inspection of the safe deposit box and/or Letters of Administration (LOA’s are actually court orders as well.)
Letters of Administration are court orders issued as part of a formal administration. LOA’s authorize the personal representative to begin administering the estate, including but not limited to, discussing financial details with banks and brokerages. It is not possible to get Letters of Administration without opening an estate in probate court.
Formal administration is the traditional form of probate in Florida. A personal representative (executor) is only appointed in formal administration.
Summary Administration is an abbreviated form of probate typically used when assets are valued at $75,000 or less (not including homestead value) or more than 2 years have passed since date of death. A personal representative is not appointed in Summary Administration. It is sometimes referred to as “small estate administration”. Learn more about Summary Administration.
Other than attorneys fees, there may be costs/expenses for:
- Case Filing Fees ($235-400)
- Publication of a “Notice to Creditors” (range: $100-200)
- Recording of Orders ($10 for the first page, $8.50 each addt’l)
- Certification of Orders ($2.00 certification + $1.00 per page of each instrument)
- Postage and/or FedEx
- Costs of ordering documents (death certificates, copies of Wills..)
- Probate administration is a court process
- Assets are collected, creditors are paid and beneficiaries receive whatever remains
- Assets = Real Estate or Personal Property
- Two kinds of “Probate”: Summary & Formal Administration
- The existence of a Will does not eliminate the need for probate
- In Florida, “Personal Representatives” are in charge of “probating” the estate
- Personal Representatives must have attorney representation (attorneys do most of the work)
- Most probate cases are filed by mail with telephone hearings (so your attorney does not have to be in the county where probate is required)
Generally no. Uncontested probate – where there is no dispute over the outcome of the case – will not require your presence in Florida. If an estate is contested, you may need to attend a hearing but your attorney may be able to appear without you. Phone hearings are also permitted in many cases.
Maybe. This is a two part question:
- The fact that you’ve been nominated as personal representative doesn’t automatically make you the personal representative. A probate court must appoint you the personal representative.
- The necessity of probate is determined by the ultimate goals. If real estate or personal property is still titled in the name of the decedent, then probate may be necessary.
Generally speaking, you can start probate whenever you’re ready. Only you know how soon you want to move forward. However, there are certain situations where starting probate too soon may expose the estate to creditor claims you might be able to otherwise avoid. Once a probate case is opened, creditors can stake their claim. Note however, there are many assets that are exempt from the claims of creditors!
This is impossible for us to answer without a consultation but the general rule is if there are no assets “stuck” in the deceased’s name, then you might not need probate. Assets that are held jointly with a spouse or which have designated beneficiaries typically pass on to the heir without the necessity of probate. However, there are many other considerations that may determine if probate is truly necessary. Since every case is different, we highly recommend that you talk to an attorney to analyze your case.
- Fill out this form and you’ll receive an immediate confirmation email
- Typically, within one (1) business day, an attorney will review your submission and prepare for a consultation
- If a short email response will do, an attorney will reply directly to you
- If your case calls for a full consultation (and quote), an attorney will reach out to you
- If you aren’t available to talk, we will happily reschedule!
- After your consultation, the attorney will issue you a quote!
- We offer Flat Fees on all uncontested matters!
- We have helped over 600 clients effectively and efficiently handle their probate cases.
- It’s a completely free, zero-obligation, 20-minute phone consultation.
- Learn ASAP if probate is really necessary.
- We try to give everyone a workable solution for their specific case (including solutions that don’t require an attorney).
- Fill out the form and you automatically get a free copy of our probate ebook (see more below).
What can I expect?
By submitting this message, I understand that I will not be charged for response via email or phone to my message and I am not forming an attorney client relationship.
“Understanding Florida Probate Law”
Inside you’ll learn more about:
- Types of probate
- Real world probate scenarios
- When not to probate
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In addition to setting up your free phone consultation, you’ll also receive a free copy to our popular ebook, “Understanding Florida Probate Law”
