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  • Ryan J. Smollar

The Ultimate Guide to the Florida Probate Process & the Participants

Updated: Aug 30

The probate process is supervised by the court system. Going through the probate process is a way to settle a person’s estate after they have died. It is the legal way to get the decedent’s (person who has died) assets to the beneficiaries or however the assets have been designated in a will, and it also sees to it that all debts are paid. This is a guide to help you understand the Florida probate process. Who will be involved in your probate hearing?

The participants include the decedent (maker of the will), the executor (carries out the wishes of the decedent as outlined in the will), the lawyer (helps executor through the entire legal probate process), the beneficiary(ies), and any creditors or lien holders against the estate. The most important thing to know is that the Florida Probate Process requires the assistance of a lawyer to move the probate process through the Florida court system.

1. The first step after a decedent passes is to look at the will if there is one. Florida courts always pay attention to the desires of the person whose will it is, also known as the testator. You will probably also need to obtain a copy of the death certificate.

The distribution of assets is usually made according to what the testator wanted. However, sometimes there may be confusion or doubt as to what the testator wanted, and, in such scenarios, the probate court is there to help make that decision.

2. In the probate process, an executor of the will needs to be named. This individual will be the personal representative of the will. The decedent may have listed the name of the person whom he or she wanted to be the executor of the will. If no one is named as the executor of the will, the probate court will appoint one. In the majority of cases, the executor may be a relative of the decedent, like a spouse or a child.

For example, if there are four siblings, they can pick and choose one or two of the siblings to act as the executor (or co-executor) of the will. In other cases, there may not be any family members and the court will appoint an unrelated individual to perform the duties of an executor.

Once appointed, the executor plays a vital role in communicating with the beneficiaries, the court, locating the assets of the decedent, ensuring that all creditors are paid and that the estate is distributed to the beneficiaries as stated in the will. Although not part of the court proceedings, the executor has the added obligation of making sure that taxes are filed for the decedent. Nine months is usually given from the date of death to complete the tax return and make any payments that are necessary.

3. The third participant in the probate process is the petitioner, also known as the lawyer. The petitioner will check the validity of the will under Florida Law and help serve the needs of the heirs or beneficiaries. The petitioner is usually tasked with presenting the will to the probate court and asking the court to admit the will into probate. After the court has approved the will and admitted it to probate, the formal role of the petitioner comes to an end.

4. The fourth participant in the probate process is/are the beneficiary(is) of the testator listed in the will. However, according to Florida law, if there is no will, the next in line to receive the assets will be the spouse first and then the children. If there is no spouse or children, the parents of the decedent are the next heirs. If there are no parents of the decedent, any siblings would be the heirs.

5. The fifth participant in the probate process would be any creditors or lien holders. It is the responsibility of the executor of the will to find out who the creditors are by placing an ad in a local newspaper of general circulation and making every reasonable attempt to contact them. Creditors usually include financial institutions, credit card companies, mortgage holders, etc. During the probate process, the executor must communicate with the creditors. Lienholders and creditors are usually paid from the estate first.

6. The sixth participant would be the judge who presides over the entire probate process.

7. Other participants will vary by circumstance and could include any persons assigned as representatives of young children, if needed, to protect their interests until they come to an age where they can represent themselves.

In almost all cases, the above are the participants in the probate process whether there is a will or not. Once the individual who has made a will dies, in Florida one must seek assistance from a lawyer. The petitioner (lawyer) will file the will with the probate court and notify the heirs. If the heirs or beneficiaries do not have any objections, then the will is admitted into probate.

Once the assets are identified, any creditors and lien holders are paid first. Only then will the court grant permission to the executor to distribute the estate to the beneficiaries as listed on the will.

Common Obstacles Often Encountered During the Probate Process

Even though the above probate process sounds fairly straightforward if all participants are in agreement, common obstacles can occur. For example, if there is no will, then the court may decide how to distribute the assets. Or, perhaps, a sibling or the spouse may contest the validity of the will or the mental status of the decedent when he or she wrote the will. It is not uncommon for one of the heirs to suggest that the will was written under duress or may be fraudulent or even forged.

Sometimes the decedent may have removed the spouse or a child from the will, or they might be offered only a small amount of the estate. These scenarios not only make the probate process longer but also more contentious and, therefore, expensive.

Conclusion

To avoid the previously mentioned obstacles, it is highly recommended that one make a will while living and develop an estate plan. Involve all family members, if possible. Once all the family members are on board and/or are made known of the wishes of the owner of the will and/or estate plan, there are usually no obstacles, and the probate process is relatively straightforward.

By working with an attorney who specializes in estate law, not only can you have him or her represent you in court, but this also ensures that everything will be legally done as stated in the will. It is not easy to navigate the court system and it is considered extremely prudent to retain a lawyer (petitioner) who is familiar with the Florida probate process. A lawyer can navigate the system far easier and better than someone who is not familiar with the specific laws.

Usually, the probate process can take anywhere from 4-8 months, but complex cases can last several years. Overall, by the time all the beneficiaries have received their share of the estate and all the creditors have been paid, you can expect the process to take about a year.


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