Understanding the Probate Process in Florida

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When a person passes away, their assets must be disbursed according to their estate plan and, when applicable, state laws and probate. At TCB Legacy Law, our probate lawyer Andre Mckenney-Dorval in Florida helps personal representatives or executors of Wills or beneficiaries of an estate through the probate process. Starting with identifying estate assets and ending with the distribution of assets and inheritances to the beneficiaries. Contact us by either using the online form or calling us directly at 954-302-8989 to schedule a Consultation Session and learn more.

Overview of Probate in Florida?

Probate is the process by which a deceased person's assets and belongings, known as their estate, are passed on to their heirs and successors. It depends on your jurisdiction, but most matters related to wills, estates, conservatorships, and guardianships are handled by probate courts. 

Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.

The Early Stages of Probate

The probate process begins when the decedent passes away. A petition is filed with the proper court to have the probate estate opened. The next step is to identify the personal representative of the decedent's estate. 

  • If there is a Will, a personal representative will likely be named in it.
  • If there is not a Will, a probate judge will appoint a qualified person to serve as a personal representative.  Preference in appointment of a personal representative is governed by Florida Statute section 733.301(1).

Once the personal representative or executor is approved or appointed by the court, he or she must:

  1. Notify the heirs;
  2. Publish notice for any creditors;
  3. Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
  4. Secure all assets.

How probate proceeds depends primarily on whether there is a Will or not.

Probate with a Will

If the decedent died with a Will, the Will must be found, filed with the court, and authenticated before its terms are put into action. This process often involves a court hearing where parties named in the Will and parties not named but who would have inherited but for the Will are in attendance. During this hearing, an interested party may contest the Will. 

If there are no challenges to the Will, the personal representative or executor must first pay off all debts of the estate. Once creditors are paid, the personal representative or executor distributes the remainder to the beneficiaries in accordance with the Will. 

However, if the Will is challenged, then another hearing may be set. The challenger has the burden to prove the Will's invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to probate court. 

Where there is a challenge to a Will's validity a determination must first be made by the court.  If the court determines the Will is valid, the personal representative or executor can pay debts, bills, and applicable taxes, and distribute assets. If the court determines a Will is invalid, it will apply Florida's intestacy laws.  On the other hand, if the court determines the that a completely different or other Will is valid, it will allow the personal representative or executor to apply the valid Will to be administered (as opposed to the invalid Will). 

Probate without a Will

If there is no Will, the decedent is said to have died intestate. This does not mean their assets will not be inherited, it just means their property will pass to their heirs through their state's intestacy laws.

Once the personal representative or executor has located all the decedent's assets and notified and paid the creditors, the probate judge will apply the state's laws of intestacy and distribute the estate to the decedent's heirs.

The End Stage of Probate

Once debts and bills are paid and the remaining assets are distributed, the personal representative or executor will file an accounting which contains all cash and property transactions that have occurred during the administration of the estate and what assets remain of the estate after final accounting.  At that time, the personal representative will ask the court to close the estate and to discharge or release the him or her from the role of personal representative.

Do You Need a Lawyer for a Florida Probate Estate?

Whether you need a probate lawyer depends on how well the estate plan was set up. Regardless, a probate lawyer offers important services that can help speed up the probate process. A probate lawyer can help with the:

  • Collection of proceeds from life insurance policies
  • Identification and securing of estate assets
  • Appraisals for the decedent's real property
  • Payment of bills, debts, and applicable taxes
  • Resolution of any income or estate tax issue
  • Preparation and filing of all documents required by a probate court
  • Management of the estate checking account
  • Transfer of assets to beneficiaries 

Contact a Probate Lawyer Andre Mckenney-Dorval in Florida Today

We are here to help you with your estate administration plan so that it survives any challenge during probate. If you are the personal representative, executor or beneficiary of an estate, we can also guide you through the probate process. If you have questions, contact TCB Legacy Law either online or at 954-302-8989 to schedule a Consultation Session with Andre Mckenney-Dorval probate lawyer today.

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