Probate is the term describing the procedure which must take place after death of an individual. The laws governing this probate procedure are state statutes. Therefore probate laws vary from one American state to another. It is for this reason that persons who move to another jurisdiction should update their Last Will and Testament. If a major life change has occurred such as marriage, divorce or birth/adoption of children there should also be an update to the Will. This article applies to Florida probate.


Miami Probate CourtA Will under Florida law is a written document signed by the decedent and witnesses meeting Florida requirements. The decedent designates a Personal Representative (executor) to administer the probate estate. The Personal Representative also ensures that all debts including funeral services are paid by the probate estate. A Notice to Creditors is filed in local newspapers to assist in finding all creditors.


If there is no Will or if an existing Will is adjudged invalid, the person is considered to have died intestate. The State of Florida then decrees that all assets after payment of creditors go to the person's relatives. The order is to surviving spouse first and then surviving children of the decedent. If both a surviving spouse and children are living descendants, the spouse receives one-half (1/2) and the remaining half is divided equally among decedent's living children.

Florida probate provides for two administrations: formal administration and summary administration. Another type relates to non-supervised administration, "Disposition of Personal Property without Administration”, but this latter proceeding can only be used in special circumstances.

The first thing most people close to a decedent ask is, "What are probate assets that have to be accounted for to the Court?" Those are assets owned by the decedent in his/her sole name at death, or by the decedent and co-owner or co-owners without provision for succession of ownership at death.


The probate judge will appoint the Personal Representative named in the Last Will and Testament unless that person predeceased the testator or is otherwise not qualified to serve. A Personal Representative should retain an attorney for his execution of the estate. No matter how simple and straight forward a Will may seem, legal issues will still develop that are confusing to non-attorneys. The Personal Representative is responsible for publishing the Notice to Creditors to start the timeline for payment of estate debts, take an inventory of the estate assets for filing in the Court, and listing of the Will beneficiaries. Beneficiaries receive copies of the probate documents so they are privy to the proceedings. However, the public is not allowed to know the financial details of any probate proceeding.


A Personal Representative can bring a probate to a declaration of final accounting and documents closing administration, but the time can vary from 3 months to much longer. A federal estate tax return may need to be filed, there might be lawsuits arising from creditors or the due process of the administration or some real estate may need to be sold in order to abide by the Will's bequests. All of these can add to the time for administrating a probate estate. Even the simplest of probates must be open a minimum of three months for the creditor claim period.


In cases where the decedent had no creditors or all have been paid and homestead real estate less than $75,000 value, a Summary Administration can be more quickly probated. However, in these estates the beneficiaries may remain liable for debts against the decedent for two years after date of death. Disposition without Administration, mentioned previously, is reserved for when a person had no real assets or only non-exempt personal property that does not exceed $6,000 and medical expenses incurred within last 60 days of the decedent's life.


In those families where the decedent had created a substantial Revocable Trust for his/her assets, the Trustee named in the Trust must send out Notice of the Trust to all creditors and beneficiaries so that the debts of the decedent can be paid from the Trust by the Trustee. The Trust is the superior document which receives the assets from the probate proceeding. The Trustee incorporates the probate proceedings, as noted in the payment of creditors and taxes, until probate is finished. Trusts usually have longer terms of existence set up for the handling of the Trust assets after abiding by the legal requirements of the Will.

United Probate