Florida Probate Court Information

Florida Probate Court Information



1. What is​ Probate?

Probate is​ the method by which the assets of​ a​ deceased person are gathered, creditors paid, and the remainder of​ the estate distributed to​ beneficiaries. in​ most Florida counties, the probate system is​ conducted in​ a​ specialized probate division of​ the Circuit Court, under the oversight of​ one or​ more probate judges.


2. How is​ Probate Initiated?

Although any beneficiary or​ creditor can initiate probate, normally the person named in​ the will as​ Personal Representative, also known as​ the executor in​ other states, starts the process by filing the original will with the court and filing a​ Petition for Administration 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 for Administration.


3. Who is​ Eligible to​ Serve as​ Personal Representative?

A bank or​ trust company operating in​ Florida, any individual who is​ resident in​ Florida, and a​ spouse or​ close relative who is​ not necessarily resident in​ Florida are all eligible to​ serve as​ the Personal Representative. Nonrelatives who are not resident in​ Florida are not eligible to​ serve as​ Personal Representative.


4. 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, the person chosen by a​ majority of​ the beneficiaries in​ interest of​ the estate shall choose the Personal Representative. if​ there is​ no will, Florida law provides that the surviving spouse may serve, or, if​ there is​ no spouse or​ the spouse is​ unable or​ unwilling to​ serve, the person chosen by a​ majority of​ the beneficiaries in​ interest shall serve.


5. is​ the Personal Representative Required to​ Retain an​ Attorney?

In Florida, the Personal Representative is​ required in​ almost all probate estate to​ retain a​ Florida probate attorney. Although the Florida probate forms are available to​ the public, these are of​ no use to​ a​ non attorney.


6. How is​ the Personal Representative Compensated?

Florida law provides a​ compensation schedule for the Personal Representative, based on a​ percentage of​ the assets of​ the probate estate.


7. is​ the Family of​ a​ Deceased Person Entitled to​ a​ Portion of​ the Estate?

Florida law provides for a​ family allowance for the surviving spouse and minor children of​ the deceased, as​ well as​ an​ elective share for a​ surviving spouse, thirty percent of​ the estate, if​ the surviving spouse would prefer the elective share to​ that left under the terms of​ the will. a​ Florida resident is​ entitled to​ disinherit adult children, for any or​ no reason. of​ course, if​ it​ can be shown that the adult children were disinherited as​ a​ result of​ the influence of​ another, they may have recourse through the probate court.


8. What Assets are Subject to​ Probate?

Assets owned by 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, particularly in​ the case of​ a​ surviving spouse choosing to​ take an​ elective share against the estate.


9. How is​ Distribution of​ the Estate Handled if​ there is​ no Will?

Florida law sets forth rules for the distribution of​ an​ estate if​ there is​ no will.

If these is​ a​ surviving spouse and no lineal descendants, the surviving spouse is​ entitled to​ the entire estate.

If there is​ a​ surviving spouse with lineal descendants, and all lineal descendants are also descendants of​ the surviving spouse, the surviving spouse is​ entitled to​ the first $20,000 of​ the probate estate, plus one-half of​ the remainder of​ the probate estate. The descendants share in​ equal portions the remainder of​ the estate.

If there is​ a​ surviving spouse with lineal descendants, and not all lineal desdendants are also descendants of​ the surviving spouse, the surviving spouse is​ entitled to​ one-half of​ the probate estate, and the descendants of​ the deceased share the other half of​ the estate in​ equal shares.

If there is​ no surviving spouse and there are descendants, each child is​ entitled to​ an​ equal share, with the children of​ a​ deceased child sharing the share of​ their deceased parent.

If there is​ no surviving spouse and no children or​ other descendants, Florida law provides additional rules for distributing an​ estate in​ such circumstances.


10. Who is​ responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is​ collected from the estate of​ the deceased. Depending on the terms of​ the will, the estate tax may be paid from the probate estate only, or​ also from a​ living trust, life insurance proceeds, and other assets passing directly to​ beneficiaries outside the probate estate. The estate tax return, Form 706, is​ filed by the Personal Representative. The Form 706 is​ due to​ be filed 9 months after the date of​ death.




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