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.

How do I access a Safe Deposit Box?

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.)

What are “Letters of Administration”?

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.

What is Formal Administration?

Formal administration is the traditional form of probate in Florida. A personal representative (executor) is only appointed in formal administration.

What is Summary 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”.

How much does probate cost?

Other than attorneys fees, there may be costs/expenses for:

  • Case Filing Fees ($345-400)
  • Publication of a “Notice to Creditors” (range: $100-200)
  • Recording of Orders
  • Certification of Orders
  • Postage and/or FedEx
  • Costs of ordering documents (death certificates, copies of Wills..)

Do I need to come to court in Florida for probate?

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.

The Will says I am the Personal Representative. Do I need probate?

Maybe. This is a two part question:

  1. 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.
  2. 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.

What if I start probate too soon?

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!

Do I actually need probate?

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.

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