If you are here to learn about Florida probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative challenges you might otherwise face during such a difficult time.
With that said, probate in Florida is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in Florida is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “Personal Representative”)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as directed by the will—or by state law if there is no will
Reasons to Avoid Probate
What’s so bad about probate in Florida…and what should I do next?
Many residents in Florida have heard that probate is bad news. It tends to be very expensive, it’s time-consuming, and it’s also a public process.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
We invite you to contact us for an individual case review by calling (813) 252-8667.
How is a Probate Started in Florida?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Personal Representative starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Personal Representative Chosen?
If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, or if there is no Will, then any interested family member or person can petition the Court to be the Personal Representative of the Estate.
Could I be held personally liable for making a mistake as a Personal Representative?
Being a Personal Representative is a big responsibility. Florida’s probate code contains pages upon pages of complex legal rules and procedures that a Personal Representative must follow during probate. Also, there are certain deadlines that a Personal Representative must meet in filing papers with the Court. If a Personal Representative violates any of these rules, they can be held personally liable for losses to the estate.
My loved one had a trust…will we need to go through probate?
In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, the family is coming into my office after there is a death and they are going to experience the frustration, expense, and delay of probate.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust. That is why it is so important that you carefully choose your estate planning attorney and have regular reviews of your trust so it works as planned.
What assets are subject to probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is the distribution of the estate handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Florida probate and intestate laws. These rules can be rather complex and vary from family to family.
How long does Probate take?
The length of time of probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.
Getting Help: Choosing the right attorney for your Probate case
The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
You don’t have to use the attorney who prepared the Will either! Just because a particular attorney prepared the Will, does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact Wake Law, LLC for a case review
If you’re ready to get started with the probate process after the passing of a loved one, please contact us at (813) 252-8667 to schedule a case review.
During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.