Florida Probate Law

What is Probate? Probate is the legal process in which a court oversees the distribution of property left to a beneficiary in a Last Will and Testament. Through a form called a Petition for Administration, a decedent's Last Will and Testament is offered to be accepted as the valid Will of the decedent and admitted into the court so that an executor (Florida refers to an executor as a Personal Representatives) is appointed and given the power to gather assets, pay claims, pay expenses, pay taxes, notify heirs and to administer and distribute the decedent's estate. The court-administered probate process of distributing assets only applies to assets that did not have a predetermined beneficiary and that were registered in the decedent's sole name. Even if there are no assets subject to probate, the original Last Will and Testament and a death certificate need to be filed with the probate court. If a Trust was created during the decedent's lifetime, then a Notice of Trust must be filed with the court.

Probate has nothing to do with the payment of death taxes and probate does not include certain type of assets. Taxes are based on the value of the decedent's estate and millions of dollars have been paid to the government without opening a probate estate. Further, if assets are titled to a trust, held jointly with another person or life insurance is payable to an heir, then no probate needs to be open and relatives of the decedent may never learn the real nature of the decedent's estate. For example, an elderly person could be pressured into establishing a million dollar trust for a dishonest home-health care aid and upon death no probate needs to be opened in order to make that distribution. Many assets fall outside the probate process so children may never learn of the existence of life insurance, joint assets or trust funds established for someone else's benefit. Only through litigation can one determine the entire value of a decedent's estate and the identity of the beneficiaries.