How Do I Start Probate in Florida? 5 Things You’ll Need, According to a Florida Probate Lawyer

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By Gary M. Landau, Esq.

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How Do I Start Probate in Florida? 5 Things You’ll Need, According to Probate Lawyer | Call (954) 979-6566

“How do I start probate?” Our law firm hears that question often as we sit across from someone who was named as personal representative in the will of someone who has died. Tasked with settling the estate, the personal representative (PR) wonders about the steps to take, the types of probate available to them, the legal matters involved, and the process of ultimately distributing the person’s belongings.

As an experienced Florida probate attorney, I understand how confusing the probate process can be, especially for people who are in the middle of mourning the deceased person–typically a beloved family member or close friend.

(Learn more at Is Probate Required in Florida? An Experienced Florida Probate Attorney Answers.)

While the process of probate administration can feel overwhelming, it’s actually a very logical one. The best way to approach it is to take things step by step. And the first step: gathering the documents and information needed by the estate administration lawyer to open the probate and start the probate process.

Here are 5 things the personal representative must gather as they begin a probate.

1. The Will (or certainty that the person didn’t have one)

Many people create a will while they are alive. This is the best way to ensure that, after death, their assets will be distributed according to their wishes. Many people maintain their original will in their home, ideally in a locked fireproof box or safe. Occasionally the attorney drafting the will keeps the original in a safe in their office. (Wills should never be stored in a bank safety deposit box; when someone dies it can be hard to access these boxes, even if your name is also on it.)

To be valid in Florida, a will must:

Be a written document: Oral declarations are not valid. A will can be hand-written, as long as it follows all the other rules.

Have a valid signature: The will must be signed and dated by the person creating it (who in legal terminology is called the testator). Any mark intended as a signature is acceptable.

Have two witness signatures: The testator must sign the will in the presence of at least two witnesses; while they can be beneficiaries of the will, it’s best if they are not. The witnesses put their own signatures on the document, attesting to the fact that they watched the testator sign.

Be of age and testamentary capacity: The person making the will must be at least 18 years old, of sound mind, and free of undue influence at the time of the signing.

While not strictly required, a second document signed by the witnesses helps move the probate process along faster. This “self-proving” document is notarized by the attorney or another person drafting the document.

During their lifetime, a testator can amend or revoke their will by creating a codicil (amendment) or even an entirely new will. It’s important to make sure you have any codicils or subsequent wills in your possession.

(To learn more, read our blog An Experienced Florida Estate Planning Attorney Answers the Most Frequently Asked Questions About Wills.)

Why the Original Will Matters 

Personal representatives are instructed under Florida probate law to file the original will—not a copy—to the appropriate probate court within 10 days after the person’s death. Wills are generally filed in the county where the deceased person last lived. For example, if they resided in Coral Springs, documents will be filed in the Broward County Probate Court; if they lived in Boca Raton, the Palm Beach County Court would be the proper venue.

Having the original will simplifies the probate process immensely. Of course, sometimes the original document can’t be found. If they have a copy, it can instead be submitted to the court, but this will require an extra legal proceeding.

What If They Never Had a Will? 

If you’re sure the person never created a will, the probate will be opened “intestate,” or without a will. The person’s assets will then be distributed according to Florida’s intestate succession laws, which determine heirs based on familial relationships.

Intestate laws leave the entire estate to a living spouse, if there is one, or evenly to living biological and adopted children if the spouse has passed. The law also dictates who get the assets when there is no immediate family, according to a clearly defined order of relationships.

(For more information, see our blog, What Happens When Someone Dies Without a Will in Florida?)

2. The Death Certificate 

A certified death certificate legally establishes that the person has passed away. Courts require this to allow a probate to move forward.

How to Get a Death Certificate

Most people obtain a certified copy of the death certificate from the funeral home that handled the arrangements. Otherwise, it can be obtained from the Florida Department of Health.

It’s best to request multiple certified copies when you get this certificate because banks, insurance companies, and other institutions will likely require one in addition to the probate court.

Are Copies Acceptable

Most courts require the original death certificate, which bears a certification mark; however, in a small number of counties in Florida, a copy is accepted.

3.An Understanding of the Person’s Assets and Where They Are Located

Probate is largely a process of managing and distributing all assets owned by the decedent. That’s why it’s important for the personal representative to understand everything the person owned that is of value and where they are. (Are all the accounts in one bank, for example, or are they spread across various institutions?)

Many Types of Assets Are Included in the Probate Process

Assets that typically go through probate in Florida include:

  • Certain real estate
  • Certain bank accounts
  • Certain Investment portfolios
  • Valuable or sentimental personal property (e.g., vehicles, jewelry)

Some assets are not part of the probate process. This includes life insurance policies, jointly owned bank and investment accounts, and investments that have designated payable-on-death beneficiaries listed on the accounts.

Where to Find These Documents

Gathering all the person’s assets takes time. First, you’ll want to check to see if the person left a list of their assets, either in their home or perhaps given to a close relative. (Our firm recommends that everyone should give such a list to a close relative; you don’t need to include balance amounts, but it’s helpful for someone beyond yourself to know where all your assets are located.)

(See our blog, An Experienced Attorney for Wills, Trusts, and Other Documents Explains Essential Estate Planning Needs.)

If you don’t find such a list, the PR will need to put on their Sherlock Holmes hat to discover every asset. Review their mail to see if bank statements or investment updates come in. (Some are sent monthly, others quarterly or only annually.) If you or another relative knows the person’s email password (or if it’s saved on their computer), see if those statements have arrived digitally instead.

Search their house for a fireproof box that may contain real estate title, insurance policies, and the like. If they had a bank safety deposit box, you’ll need documents from the court before you can look there. Look for their latest tax documents, as some of these assets may be listed there.

If the person had numerous investments (such as money in a bank, investments in a brokerage account, an IRA in another institution, and a health savings account somewhere else), locating assets can be the most challenging part of the personal representative’s job.

It’s okay if you don’t find everything all at once. While it’s ideal for everything to be discovered at the outset of a probate process, court documents can be amended if items are discovered while the process is ongoing.

4. Contact Information for All Beneficiaries

Identifying and notifying all the beneficiaries listed in the will (or all legal heirs, in the case of intestacy) is another crucial step in probate administration. That’s why you’ll need the name, address, phone number, and email address of everyone named as a beneficiary–even if they’re just getting a token sentimental item.

Why This Contact Information Is Needed

Florida law mandates that everyone with a legal interest in the estate receive formal notice of the probate proceedings. This informs them of their inheritance rights and gives them the opportunity to understand what assets they will be getting. These heirs also need to sign legal documents during the probate process.

Tips for Gathering Contact Details 

Obviously it’s easiest if you personally know all the beneficiaries and have their personal contact information. That’s not always the case, however, especially if the will leaves something to a very old friend, a caregiver, or to a charity.

Some information can be gleaned by searching online, including through government public records. In rare cases, you may need to hire a professional locator service; many attorneys know companies that do this.

If you contact your relatives in advance to let them know about the probate, inform them they will be hearing from the probate attorney, so they can be on the lookout for such communication.

5.Known Creditors You Expect May File a Claim, Including the Hospital Where The Person Died

Before distributing assets to the beneficiaries, the estate must pay all debts legally owed by the estate; this includes loans, credit cards, and medical bills. (The estate will also reimburse funeral costs that may have been paid by a relative or friend.)

What to Know About Creditors

Florida law requires the probated estate to notify all known creditors. This notice creates a window—typically 90 days—for creditors to file claims before the probate can proceed.

Creditors that aren’t notified during the probate process have two full years to file their claim. The ability to shorten that period to 90 days–so you aren’t surprised by a bill later–is a key reason why gathering all creditors up front is important.

Sometimes, even when creditors know they are owed money, they do not bother to file a claim.

Include Medical Creditors

Even if the deceased is the rare person who lived completely debt-free, they likely died owing something. That’s because creditors include medical providers and the hospital where the person received end-of-life care.

If the person was uninsured, hospital bills can represent a significant portion of the estate’s liabilities. The PR can try to negotiate with these creditors to bring that figure down. If the person did have insurance, be sure they are covering everything they are required to.

How a Probate Lawyer Can Help

A skilled probate lawyer can help verify legitimate claims and pay creditors appropriately from the estate bank account, while working to protect the rights of beneficiaries.

Gathering all the information needed to begin the probate process may seem overwhelming, which is why it’s important to take your time after someone dies. Some people contact our law firm a day after the funeral, which is fine if they are emotionally ready and in possession of the needed documents and information. But it’s also fine to wait some time before beginning the probate process.

If you’re wondering when is the best time for you to initiate the probate of a loved one who recently passed away, contact our office and we can talk through the process together.

The LAW OFFICE OF GARY M. LANDAU, P.A. — Your Trusted Probate Lawyer Serving Coral Springs, Parkland & All of Florida

With more than 25 years of experience in our practice areas and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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