Probate FAQ

That depends. Probate is only necessary if there were assets titled solely in a deceased person’s name that did not have beneficiary designations. For example, if a person dies owning only a home, car, and bank account, and the deceased person’s spouse is a joint owner of each of those, then probate should not be needed because the spouse will automatically get full ownership of each asset when the person dies. But if the house and car were only in the deceased person’s name while the bank account had a POD (payable on death) beneficiary, the bank account would pass automatically, but probate would likely be necessary to transfer the house and vehicle into the heirs’ names.

Probate costs can vary greatly depending on a number of factors. Some attorneys may be comfortable handling simpler probates, such as summary administrations, for a flat fee, while others may charge hourly or based on the Florida “statutory rate” (a rate that increases based on the total value of assets in the probate estate).

Some issues that can greatly increase the cost of probate are if there is a will contest (someone claims the will is invalid), complex assets (like a business), tax issues, or questions about who are the true beneficiaries of an estate. Also, attorney’s fees are not the only cost—court costs and costs to send notice to interested parties can quickly add up. Because of this, it is difficult to give a “one size fits all” price for probate, which can range from around $1500 to tens of thousands of dollars.

At Merhar Law, we strive to utilize flat fee billing whenever possible so you know at the outset what to expect.

By crafting a solid estate plan, you can help minimize the costs and stress of probate for your loved ones or even avoid probate altogether.

The probate process can take as little as a month up to years to complete. The amount of time depends on a few main things:

1. The type of administration (summary versus formal)

2. Whether there are any issues that need to be addressed (someone contests the will, property is in dispute, tax issues, and so on)

3. The court itself—some courts (mainly in larger, urban areas) are busier and can take months to address each step of the process

Probate is a voluntary process, so someone must petition a court to begin the proceeding. In Florida, any “interested person” can petition a court to begin probate. An interested person is anyone who “may reasonably be expected to be affected by the outcome of the proceeding.” This generally means anyone who might get something from the decedent’s estate, including creditors. If the decedent died testate (with a will), this includes not only the people named in the will, but also people who would receive something if there were no will or if the will were invalidated, such as if the testator/testatrix (person whose will it is) did not have the capacity to make a will or if the will was the result of fraud or undue influence.

So, for example, if a person died with a will and was survived by only their adult children but left everything to a friend in the will, the friend and children are all interested persons. This is because if the will is valid, the friend will get everything, but if the will is not valid, the children will get everything via intestate succession.

If probate is necessary and the decedent was domiciled in Florida (lived here with the intent to permanently remain here), probate will be opened in the county where the decedent was domiciled, even if the decedent owned property elsewhere. This is because any circuit court in Florida can administer property throughout the state. However, if someone died while domiciled in another state but owned property in Florida, the initial probate proceedings will likely be opened where the decedent was domiciled, and then separate proceedings will be opened in the Florida county where the property was located.

A personal representative and executor are the same thing—in Florida, we use the term personal representative. In a formal administration, this is the person or people who will be responsible for administering the deceased person’s estate. That means hiring an attorney (required for personal representatives in Florida), making an inventory of all the decedent’s assets, notifying creditors and other people who may have an interest in the estate, dealing with any issues that may arise during the administration, resolving any of the decedent’s valid debts, and ultimately distributing the assets to heirs or those named in the decedent’s will.

Summary administrations typically do not have a personal representative since there are fewer steps in the process. Instead, an interested person (usually a spouse or adult child) directly petitions the court to distribute the deceased person’s assets.

In order to qualify as personal representative of an estate, Florida law requires the applicant to be sui juris, which means 18 years of age or older, with full civil rights. The applicant must also be physically and mentally able to perform their duties as personal representative and cannot have a felony conviction or conviction for abuse, neglect, or exploitation of an elderly or disabled person.

In addition to the above requirements, Florida requires the applicant was either a resident of Florida at the time the deceased person passed away, or, if they were not a resident of Florida, they fall into one of the following categories:

1. A legally adopted child or adoptive parent of the deceased person

2. Related by lineal consanguinity (a grandparent, parent, child, or grandchild) to the deceased person

3. The deceased person’s spouse, brother, sister, uncle, aunt, nephew, or niece, or a person related by lineal consanguinity to any of these relations

4. The spouse of anyone in this list

Florida also permits the following institutions to serve as personal representative of an estate:

1. Trust companies incorporated in Florida

2. State banking corporations and savings associations authorized and qualified to exercise fiduciary powers in Florida

3. National banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida

4. The successor to any of the above

In addition to these qualifications, you should always remember that your personal representative is the person you are trusting to handle your assets and debts after you pass away, which is not always a simple task and not a decision that should be made lightly.

As you can see, there are a number of factors you should consider when nominating your personal representative to help ensure your estate is handled smoothly and efficiently. An estate planning attorney can help you assess any potential issues and decide who is best suited to fill this role.

Yes, in Florida a personal representative is entitled to compensation, even if they would otherwise receive property from the decedent’s estate as an heir or beneficiary. The compensation is in addition to anything else they would receive and actually gets paid before any distributions to heirs or beneficiaries. Compensation is based on the value of the decedent’s estate and how many people served together as co-personal representatives, but a court can increase or decrease compensation based on a number of factors, such as if there were a lot of difficulties administering the estate.

Probate is a public process, so most documents filed with the court (including the decedent’s will) become public documents.

Yes, if you petition to begin probate proceedings (whether summary or formal administration), at some point you will need to notify the decedent’s creditors, spouse (if any), minor children (if any), and other interested parties (those likely to be affected by the proceedings). If you fail to notify a required party and they bring it up with the court, they can potentially undo everything that has already been done in the proceedings, even if assets have already been distributed and the court is ready to close the probate.

If you die while owning property located outside Florida, a secondary form of probate, called ancillary administration, may be necessary. Ancillary administration is another probate process that will take place in tandem with the principal proceedings (presumably in Florida), where a local court will transfer the property located in the other state to the decedent’s beneficiaries and settle any of the decedent’s debts owed to creditors specific to that state.

For example, if you own your primary residence in Gainesville and have a cabin in the mountains of Tennessee, your family may have to open probate in Florida and then open another probate in Tennessee to make sure all of your property legally transfers to them. This can oftentimes significantly increase the time and expense of probate.

However, if the out-of-state property is held in trust or other estate planning measures are taken, the property can pass to your beneficiaries outside probate, which will potentially save a lot of time and money. This is a situation where a trust is often appropriate to facilitate a smoother transition to your beneficiaries.

If a loved one dies and you have the original will (usually signed in blue ink), Florida law requires you to deposit it with the Clerk of the Court in the county where the deceased person was domiciled at the time they died within 10 days of learning of the person’s death. If you only have a copy of the will, try to find where the original is located, which may be with the attorney that drafted the will. If an original cannot be located, a copy can be used in some circumstances.

A person is domiciled in the place they lived with the intent to remain (think, where did the person consider their permanent home). For example, if someone dies in a nursing home in Levy County but still had their home in Alachua County, Alachua County would be the domicile since the person likely intended to return there.

Most likely, yes, you will still need to open probate. The will only takes effect when it is admitted to court during probate, which is the legal way to declare, “This is the real, valid will.” This lets banks, the DMV, and other entities know that it is okay to transfer ownership to the beneficiaries of the will.

An exception to this is if everything the deceased person owns automatically transfers at death, as in the case of bank accounts with payable on death beneficiaries. In this case, probate may not be necessary.

If in doubt, speak with a Florida probate attorney to see if probate is necessary in your case.

Wrong. A power of attorney always terminates when the principal (the person who gave the power) dies. If you are an agent or attorney-in-fact (the person who gets the power) for someone who has died, you cannot take any action on that person’s behalf or do anything with any of that person’s property. If there is still property in the deceased person’s name, probate may be necessary to transfer it to their heirs or beneficiaries.

If you are not sure, contact a Gainesville probate attorney for guidance.

Unfortunately, unless your parent (or any other person who told you that you are going to get all of their property when they die) either executes a valid will, creates and funds a trust for your benefit, or makes you the payable on death beneficiary of all of their assets, words alone are not enough. Florida does not recognize oral wills, so if the person dies without a valid will or trust, you will at most get an intestate share of the estate.

If you are unsure what you may be eligible to get from a loved one’s estate, contact a Florida probate attorney for guidance.