Process for Probating a Will in Florida
When a Florida resident passes away with a will, the will must go through the probate process before assets can be distributed to beneficiaries. Probating a will ensures the will is valid and the decedent's wishes are properly carried out. While the probate process can seem daunting, having an understanding of the steps can make the process smoother.
Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us.
1. Locate the Will and File the Petition
The first step is to locate the original will and file a petition to probate with the clerk of the circuit court in the county where the decedent resided. This petition should include an original death certificate and the original will. The petition will officially start the probate process in Florida.
Once filed, the clerk will set a date for a hearing before a judge. This hearing allows interested parties to validate the will being admitted to probate. Notice of the hearing will be sent to all beneficiaries named in the will.
2. Appoint a Personal Representative
During the initial hearing, the judge will appoint an executor, or personal representative, to manage the estate. This is typically the person named as executor in the will. However, if that person is unable or unwilling to take on the responsibility, the judge can appoint someone else, such as another beneficiary or professional administrator.
The personal representative must be appointed before assets can be distributed. Their main responsibilities include:
Paying valid claims against the estate
Making distributions according to the will
Filing tax returns
Closing the estate
3. Notify Creditors
Within 60 days of appointment, the personal representative must publish a creditor's notice in a local newspaper. This puts creditors on notice to file any claims against the estate within a specified timeline, typically 3 months. They must also directly notify known creditors via mail.
This ensures all valid debts and taxes are paid before assets are distributed to beneficiaries. Claims filed after the deadline may not be paid.
4. Inventory Assets
A complete inventory of probate assets must be filed with the court within 60 days of appointment. This includes all solely-owned property and the decedent's share of any joint property.
Assets typically included are:
Life insurance with a named beneficiary
Non-probate assets like trusts and accounts with a transfer on death (TOD) designation pass directly to beneficiaries and do not need to go through probate.
5. Pay Claims Against the Estate
Valid creditor claims and taxes must be paid before making distributions. Typical estate expenses paid at this stage include:
Credit card debt
Mortgages or loans
Income and estate taxes
If assets are insufficient to pay all claims, Florida law establishes the order they must be paid in.
6. File Tax Returns
The personal representative must file all required tax returns on behalf of the estate. This includes the decedent’s final individual tax return and may also include gift, estate, and fiduciary income tax returns.
7. Distribute Remaining Assets
Once all expenses and taxes are paid, the personal representative can petition the court for permission to distribute remaining assets to beneficiaries. This is done according to the instructions in the will.
Beneficiaries must sign a receipt confirming they have received the bequeathed assets before the estate can be closed. If the will creates a trust, assets are transferred to the trustee for further distribution.
Once complete, the personal representative files a final accounting and closing statement with the court. This finalizes the probate process.
Wrapping Up Probate in Florida
The probate process involves many steps, but an experienced probate attorney can help simplify the process. With proper estate planning, probate may also be avoided altogether through trusts or accounts with beneficiary designations. This ensures your wishes are carried out efficiently.
Frequently Asked Questions About Probate in Florida
1. How long does probate take in Florida?
For a simple estate with a valid will, probate in Florida typically takes 6-9 months. Larger or contested estates can take 1-2 years. Expedited options are available for spouses and smaller estates.
2. Can you avoid probate in Florida?
Probate can often be avoided using living trusts or naming beneficiaries on accounts. Property owned jointly with rights of survivorship or in a life estate also avoids probate.
3. When should you use probate vs. a trust in Florida?
For smaller, simpler estates, probate is usually preferable. Trusts become beneficial for larger estates or when privacy and control are priorities. Trusts also avoid court oversight of the estate.
4. Who notifies creditors in Florida probate?
The personal representative of the estate is responsible for notifying known creditors and publishing a creditor’s notice in a local newspaper within 60 days of appointment.
5. Does everything go through probate when someone dies in Florida?
No. Assets like trusts, life insurance, TOD accounts, and property owned jointly bypass probate. Only assets solely owned by the decedent require probate.
Let an Experienced Attorney Handle Your Florida Probate
The probate process can be complex, but having a thorough understanding of the steps can help you effectively execute a loved one’s wishes. An experienced probate attorney can handle all aspects on your behalf and ensure it is completed efficiently. Contact us today to schedule a consultation.
Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to,probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us.
This article was partly generated by the use of artificial intelligence or AI, and is provided as general information for educational purposes only. This article is not intended to provide specific legal advice, and should not be relied upon as a substitute for competent advice from a licensed attorney. To speak with one of our attorneys all you have to do isclick here.If you’re interested in more in-depth ruminations on this area of the law written 100% by a live human being, visit the Florida Probate & Trust Litigation Blog by going to the home page for firm partner Juan Antunez.