Probate
Probate is the legal process by which the will is presented to the court and determined to be valid and effective. Most often, wills are challenged because the testator was under undue influence or otherwise was incompetent when it was made. Secondly, wills may be challenged on the simple basis that they were executed improperly. For this reason, our office utilizes many safeguards to make quick work of such challenges to your estate planning documents.
If no will has been executed by the decedent, then the court determines who the heirs will be under the applicable statutes. A personal representative (also known as an executor or executrix) is appointed by the court in accordance with the will or law. The personal representative is then charged with gathering and protecting the decedent's assets, and determining the last debts that must be paid. Notices must be provided to creditors as well as beneficiaries. The personal representative then pays the final debts and disburses the remaining assets to the beneficiaries according to the will's terms or by law.
If a decedent has been dead for over two years, and the estate is worth less than $75,000.00, then the estate may be handled with a summary administration, which often takes much less time as compared with a full formal administration.
Under the elective share and family allowance statutes, the decedent's surviving spouse and family are entitled to receive a certain proportion of the estate, regardless of what the will requires.
Because probate is a court-supervised process in Florida, personal representatives are not permitted to represent themselves in the probate proceeding, unless they are also a licensed Florida attorney. For that reason, we are called upon often to represent personal representatives of estates in the probate proceedings.
If a person dies outside of Florida, and they have property inside of Florida, then an "ancillary" estate probate proceeding may need to be filed in Florida to distribute the property located there. Most often, our firm sees this issue in the timeshare or vacation ownership realm. The owner of the unit-week dies, and when the heirs try to use the unit-week or rent it to someone else, they discover that the resort has not changed the owner name on the records of the association. This makes the timeshare or vacation ownership interval worthless to the heirs. To legally transfer the title, a probate action may need to be opened in the county where the timeshare is located. We can assist clients in need of such services.
For further details on the probate process in Florida, The Florida Bar has published a pamphlet for your review.
