Probate

A guide to Probate

 

This department maintains the files on estates, wills, and guardianships for both minors and incapacitated persons. The Probate Deputy Clerk monitors, files, and stores all pending case files and the wills of deceased persons deposited for safekeeping.

 

Probating an estate is necessary whenever a deceased person leaves titled assets in his or her name alone. A party then files a petition for administration or other qualifying estate proceeding with the assistance of counsel, which allows distribution of the decedent’s assets.

 

Disposition of Personal Property Without Administration may be filed without the assistance of an attorney and are handled by the Deputy Clerk in the Probate Department. The assets of an estate must not exceed the amount of the preferred funeral expenses and the cost of medical expenses for sixty (60) days prior to death. The Clerk assists the public and the court by processing forms, verifying the assets of the decedent.

 

Gaurdianships are filed for both minors and incapacitated persons. An attorney must initially represent guardians. (Rule 5.030).

 

An individual can petition the Court to have a guardian appointed for an adult believed not to be mentally capable of taking care of himself or herself. The Court appoints a committee to evaluate the person and make a report to the court.

 

Guardians can be appointed a guardian of the person only, property only, or person and property.

 

Guardianships are also filed for minors when the minor child has inherited money or property in excess of $5,000 or received money from a settlement in excess of $5,000. If one or more parents of the minor child are living, a guardian of the property only is required. If a minor’s parents were deceased or unable to serve as guardian, the minor would require a guardian of the property and the person.

 

 

 

The types of petitions filed

 

 

Formal Administration:

Juvenile Formal Administrations are used when it is necessary to appoint a personal representative to act on behalf of the estate because the assets exceed the monetary limits for other types of administration or other special circumstances. The Court gives the authority to the Personal Representative at the time of the appointment and when Letters of Administration are issued to the representative so that he/she may complete the administration of the estate.

 

See Florida Statutes 731, 732, 733, and 735.

 

Family Administration:

Family Administration is normally used when the decedent leaves only personal property and the value of this property does not exceed $60,000.00. The requirement for this type of administration is that the beneficiaries or heirs at law consist solely of a surviving spouse, lineal descendants, and lineal ascendants, or any of them. If the decedent has been dead for more than 2 years it can also have real estate.

 

See Florida Statute 735.

 

Summary Administration:

Summary Administration may be filed when the value of the entire estate does not exceed $75,000.00 or that the decedent has been dead for more than 2 years. Any beneficiary, heir at law may file a petition for Summary Administration, or person nominated as Personal Representative in the decedents will.

 

See Florida Statute 735.

 

Petition to Admit Foreign Will:

The purpose of this petition is to transfer title of real property in this state of a non-resident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting the will to probate. This petition may only be filed if the decedent has been dead for more than 2 years.

 

See Florida Statute 734.

 

Ancillary Administration:

Ancillary Administrations are used when it is necessary to appoint a Personal Representative to act on behalf of the estate when the decedent is a nonresident and his/her assets are titled in their name alone. The petition must be accompanied by authenticated copies of the probate proceedings from the state the decedent was a resident of or if no estate was required an authenticated copy of the will, or if no will, then the nonresident petition must state that there are no proceedings in another state or country. The Court gives the authority to the Personal Representative at the time of the appointment and when Letters of Administration are issued to the representative so that he/she may complete the administration of the estate.

 

See Florida Statute 734.

 

Caveat:

A caveat may be filed with the Clerk by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice.

 

See Florida Statute 731.

 

Conservatorship:

Conservatorships are used when a resident of this state is an “absentee”. This could be someone who is a member of the Armed Forces, reported as missing in action, disappears under circumstances indicating they may have died, or amnesia, etc. A petition may be filed to appoint a Conservator to administer their estate until they are found or declared dead.

 

See Florida Statute 747.

 

Curatorship:

Curatorships are used when the Court needs to appoint a Curator and issue Letters of Curatorship to take charge of the estate of a decedent until Letters of Administration are granted.

 

See Florida Statute 733.

 

Notice of Trust:

Notice of Trust is to be filed with the Clerk upon the death of a settler of a trust. The Notice of Trust must contain the settler’s date of death, name of the settler, the title of the trust, if any, the date of the trust, and the name and address of the trustee.

 

See Florida Statute 737.

 

Trust:

Trust cases in the Probate Department are usually opened to appoint a Successor Trustee on an existing trust or to dissolve an existing Trust.

 

See Florida Statute 737.

 

Guardianships:

Guardianships are filed for both minors and incapacitated persons. An individual, through their attorney, files for a guardianship to be appointed for an adult person when they believe that person is not mentally capable of taking care of themselves. Mental Health appoints a committee to evaluate the person and make their report to the Court. In some instances the adult person may be only physically unable to care for him or herself and may need a guardian. Guardians can be appointed as

 

Guardian of the person only, property only, or both person and property.

 

Guardianships are also filed for minors when the minor child has inherited money or property in excess of $5,000.00 from a deceased relative, or received money from a settlement in excess of $5,000.00. In this case a guardian of the property is all that is needed if the minor child’s parents are living. If a minor child’s parents are deceased or unable to be appointed guardian, they may need a guardian of the person and property.

 

Voluntary Guardians are filed when an adult person wants another person to handle their property.

 

Guardianships may also be filed for individuals who are entitled to receive benefits from the United States Department of Veterans Affairs and who are governed by the Veterans Administration Guardianship Statutes Part VIII (Veterans Guardianship – F.S. 744.602).

 

The Veterans Administration files their own certificate of incapacity, which eliminates the need to declare the ward incapacitated through the Mental Health Department. The Court monitors all Guardianship cases.

 

See Florida Statute 744.

 

Production of Wills:

The custodian must deposit the will of the decedent with the Clerk’s Office in the County where the decedent resided, within 10 days after receiving information of the death of the maker of the will. The custodian must provide the decedent’s date of death or social security number to the Clerk when depositing the will. There is no fee to deposit the will with the Clerk’s Office.

 

See Florida Statute 732.901.

 

Some frequently asked questions

 

Is there a fee for depositing a will?

No.

 

Can a Will be deposited with the Court for Safekeeping if the Will Maker is still alive?

No

 

What does Probating a Will mean?

It means taking all legal steps necessary to assure a Will is valid and to admit the will to Probate.

 

What does “Estate” mean?

It relates to all property of a deceased person that is subject to a Probate action.

 

What does “Probating an Estate,” mean?

This is a legal process provided for by Florida Law who determines the value of a deceased person’s property and its distribution to heirs.

 

Where do Probate Proceedings take place?

Proceedings are held in the Circuit Court of the County where the deceased was domiciled or owned property.

 

Why is Probate necessary?

To collect and determine the Estate’s assets and to protect the assets of the Estate.

 

To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes.

 

To legally transfer ownership of Real Property.

 

To determine who is entitled to share in the Estate and to distribute the property to the proper parties.

 

What happens if a person dies, and has left no Will?

The property will be distributed in accordance with Florida Law.

 

 

 

Glossary of terms used in Probate

 

 

See Florida Statute 731.201 for a list of general definitions.

 

 

 

Authenticated:

When referring to copies of documents or judicial proceeding required to be filed with the Court under this code, shall mean a certified copy or a copy authenticated as defined in Florida Statute 731.201.

 

Clerk:

This means the Clerk of Circuit or a Deputy Clerk of the Court.

 

Conservator:

This means court appointed custodian of property belonging to a person as defined as “Absentee” in Florida Statute 747.

 

Court:

Refers to the Circuit Court.

 

Curator:

Means a person appointed by the court to take charge of the estate of a decedent until letters are issued.

 

Domicile:

This means a person’s usual place of dwelling and shall be synonymous with “residence”.

 

Estate:

This means property of a decedent or ward that is subject to administration. Call (352) 486-5266 Ext.259

 

Guardian:

This means a person who has been appointed by the Court to act on behalf of a ward’s person or property, or both.

 

Incapacitated Person:

This means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of such person.

 

Minor:

This means person under eighteen (18) years of age whose disabilities have not been removed by marriage or otherwise.

 

Next of Kin:

Those persons who would be heirs at law of the ward or alleged incapacitated person, or if such person were deceased, and includes the lineal descendants of such ward or alleged incapacitated person, or deceased person.

 

Parent:

Excludes any person who is only a stepparent, foster parent, or grandparent.

 

Personal Representative:

This means the fiduciary appointed by the Court to administer the Estate and refers to what has been known as an administrator.

 

Petition:

This means a written request to the Court for an Order.

 

Probate of Will:

This means all steps necessary to establish the validity of a Will and to admit a Will to Probate.

 

Property:

Means both real and personal property or any interest in it and anything that may be the subject of ownership.

 

Totally Incapacitated:

This means incapable of exercising any of the rights enumerated in Florida Statute 744.3215(2) and 744.3215(3).

 

Ward:

This means a person for whom a guardian has been appointed.

 

Will:

This means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of their property on or after their death and includes an instrument which merely appoints a personal representative or revokes or revises another will.