Probate refers to the combined result of all the procedural acts
necessary to establish the validity of a will. It is a legal process
through which the assets of a deceased person are collected and
inventoried, distributed to pay creditors' claims against the estate,
and, if there are remaining assets, distributed to the heirs or
beneficiaries. The Court determines the validity of the will and
oversees the process to ensure that the estate is properly administered.
What is a will? When and
where should it be filed?
A will is a document executed by a person which
expresses that person's wishes as to how property is to be disposed
of after the person's death. A will usually names a personal representative
to administer the estate. The custodian of the will must deposit
the will in the office of the Clerk of the Circuit Court within
10 days of receiving information that the person is deceased.
The custodian should deposit the will with the Clerk of the Circuit
Court in the county where the decedent resided. The custodian
must supply the person's date of death or the person's social
security number to the Clerk upon deposit of the will, if this
information is available.
The address for the Probate Division of the Orange
County Clerk of the Circuit Court is 425 North Orange Avenue,
Room 340, Orlando, Florida 32801.
Do you need an attorney to
deposit the will with the Clerk?
No. An attorney is not necessary to deposit the
will with the Clerk of the Circuit Court. However, you may want
to consult with an attorney before filing so that he or she may
determine whether probate proceedings are necessary.
What happens if a person dies
and has left no will?
If a person dies intestate (without a will), the
person's property will be distributed according to Florida law.
How are probate proceedings
initiated?
Probate proceedings are initiated by filing a petition
seeking to administer an estate or to admit a will to probate.
A filing fee is required and will vary according to the type of
administration necessary for the estate.
Are there different
types of proceedings that can be filed depending on the size
of the estate?
Yes. There are three basic types of proceedings
for administering the decedent's estate:
- Formal Administration. This type
of proceeding is used when there are considerable assets and
it is necessary to appoint a personal representative to act
on behalf of the estate. Letters of administration will be issued
to the personal representative so that he or she will be able
to administer the estate.
- Summary Administration. Summary
administration may be filed when the value of the entire estate
does not exceed $75,000 or when the decedent has been dead for
more than two years.
- Disposition of Personal Property Without Administration.
This type of proceeding is filed to request release of the decedent's
assets to the person who paid for final expenses such as funeral
bills or medical bills that accrued in the last 60 days. In
this type of proceeding, the decedent's assets are usually no
more than $6,000. The form required to file for the disposition
is available from the Clerk's Probate Division, located at 425
North Orange Avenue, Room 340, Orlando, Florida 32801.
What type of documentation
must accompany the form for filing a disposition of personal property
without administration?
The following must be provided along with the petition
for disposition of personal property without administration:
- Itemized, paid funeral bill.
- Paid receipts for any medical expenses incurred 60 days prior
to death.
- Death certificate.
- Documents verifying the asset to be released.
- If the decedent has a will, it must be filed with the Clerk
of the Circuit Court within 10 days of the notice of death.
What happens
after the petition for disposition of personal property without
administration is filed with the Clerk?
If the court is satisfied that the person is entitled
to the decedent's assets, the court will enter an Authorization
allowing the release or transfer of the assets. The original Authorization
is mailed to the petitioner.
Is there a
requirement that the personal representative be represented
by an attorney?
According to Rule 5.030 of the Florida Probate Rules,
a personal representative must be represented by an attorney admitted
to practice in Florida unless the personal representative remains
the sole interested person. An "interested person" is
any person who may reasonably be expected to be affected by the
outcome of the proceeding. A personal representative who is an
attorney admitted to practice in Florida may represent himself
or herself.
Can a person who
is not a Florida resident serve as a personal representative?
A person who is not a Florida resident cannot serve
as a personal representative unless he or she qualifies under
one of the following exceptions.
- The person is a legally adopted child or adoptive parent
of the decedent.
- The person is related by lineal consanguinity to the decedent.
- The person is a spouse, brother, sister, uncle, aunt, nephew,
or niece of the decedent; or the person is related by lineal
consanguinity to one of these people.
- The person is a spouse of any person listed in numbers 1
through 3 above.
