What Are The Steps Involved in Probate in Florida?

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By Gary M. Landau, Esq.

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What Are Steps Involved in Probate in Florida? | Call (954) 979-6566

Probate is the legal process of verifying a deceased person’s last will and testament. Probate includes locating the deceased person’s assets, determining the assets’ value, settling an estate by paying any final taxes and bills, and passing the estate on to the beneficiaries.

All steps in a probate are done to ensure that the person’s wishes about their assets are carried through. Most of these steps are conducted by the personal representative of the estate, generally an individual named in the will for this purpose. Florida probate law allows for the personal representative to be paid, generally 3 percent of the estate’s value.

Here is how the probate process works in Florida.

1. Identifying Probate Assets

Probate assets include any property that had belonged to the decedent individually, including their home, vehicle, personal valuables, and any bank or investment accounts that don’t specify beneficiaries. Any jointly owned property (if there is a surviving spouse or other family members, for example), trust assets, bank accounts, or IRAs that name beneficiaries are non-probate assets.

A probate lawyer can help you learn about the documentation necessary for the probate process, including the deceased person’s will, death certificate, bank and brokerage account statements, and other relevant documents. 

2. Filing Through the Probate Court

The personal representative’s first step is to have their attorney file a petition with the probate court, generally  in the deceased person’s county of residence. At this point, all legal heirs and beneficiaries of the estate receive a formal notification stating that the decedent’s estate is open.

The court grants the petition by issuing Letters of Administration, which designate the decedent’s personal representative, allowing that person to access the decedent’s assets and start performing the necessary estate administration tasks, such as opening a bank account in the estate’s name.

3. Notifying the Decedent’s Creditors

Florida probate law requires the personal representative to let all of the decedent’s creditors know that the estate is open. This is done by notifying the creditors directly and also publishing a formal Notice to Creditors in a local newspaper at least once a week for two consecutive weeks so others who are owed money will know.

As a rule creditors have three months from getting noticed to file claims against the estate. 

4. Inventorying the Decedent’s Estate

It is necessary to determine the total net worth of the decedent’s estate before completing a probate. These assets may include real estate and vehicle titles, bank accounts, stock and bonds, valuable property, and any countable assets. The attorney for the decedent’s representative files the inventory with the probate court.

5. Paying Any Valid Debts

The personal representative pays all valid debts using available cash from the decedent’s estate account. The representative may contest claims not deemed to be valid with the probate court.

Claims received more than three months after the notification period can be stricken by the court. 

6. Filing and Paying Estate Taxes

Most estates fall under the threshold for paying federal estate taxes, but if they are above this limit an estate tax return must be filed. 

The personal representative also needs to have the person’s personal tax returns completed and paid for the year. 

7. Distributing Remaining Assets

After all these steps are complete, the remaining property is ready to be passed to the decedent’s beneficiaries, according to the instructions in his or her will or, if there is no will, according to Florida state law. Assets that are not liquid and are not specifically bequeathed in the will, such as a home, are sold and the proceeds are distributed.  

8. Closing the Estate

After the inheritance distribution is complete, the personal representative petitions the probate court to release him or her from the position and closes the estate. This action officially ends the probate case.

Quick Frequently Asked Questions

1. Is there a faster alternative to the “Formal Administration” process described?
Yes. Florida law provides for Summary Administration under Florida Statute § 733.201. This is a streamlined probate process available if the total value of the estate (excluding protected homestead) is $75,000 or less, or if the decedent has been deceased for more than two years. Summary Administration is significantly faster and often does not require the appointment of a Personal Representative, as the court issues an order directly distributing the assets to the rightful beneficiaries.

2. Are certain family members disqualified from serving as a Personal Representative?
Yes. Under Florida Statute § 733.303, a person is not qualified to serve as a Personal Representative if they have been convicted of a felony in any jurisdiction. Additionally, the individual must be a Florida resident at the time of the decedent’s death, unless they are a close relative (such as a spouse, sibling, parent, or child) as defined by Florida Statute § 733.304.

3. What is “Exempt Property,” and how does it differ from probate assets?
Under Florida Statute § 732.402, if the decedent was a Florida resident and is survived by a spouse or children, certain assets are categorized as Exempt Property. This typically includes household furniture and appliances (up to $20,000 in value) and two motor vehicles regularly used by the decedent. These assets are protected from most creditor claims and pass directly to the surviving spouse or children outside of the standard debt-payment hierarchy, provided a petition is filed within the required timeframe.

4. Can a creditor still make a claim if I don’t start the probate process for several years?
No. Florida has a “Statute of Repose” under Florida Statute § 733.710. Regardless of whether probate is opened or notice is published, all claims against an estate are forever barred two years after the decedent’s date of death. This is why many families choose to wait two years before filing for Summary Administration, as it effectively eliminates the risk of unknown creditors disrupting the distribution of assets.

5. How is the “Protected Homestead” handled during the probate process?
In Florida, the primary residence is often considered Protected Homestead under the Florida Constitution (Article X, Section 4). This property is not a “probate asset” in the traditional sense because it is generally exempt from the claims of unsecured creditors. However, a Petition to Determine Homestead Status must be filed with the court to obtain an order that officially “clears the title,” allowing the heirs to sell or refinance the home without the cloud of the decedent’s debts.

Do You Need Legal Help With Probate?

A knowledgeable probate lawyer can help with all steps of the probate process, enabling the case to move as quickly and efficiently as possible. 

Gary M. Landau, P.A.: Trustworthy Probate Attorney Firm in Coral Springs, FL

As you grieve the death of a loved one, handling the financial aspects may seem overwhelming. The Law Office of Gary M. Landau, P.A., has been handling probates, wills & trusts, and real estate under Florida law in South Florida’s Broward and south Palm Beach counties since the 1990s. Call our office at (954) 979-6566 or complete our online form today and schedule your consultation at no cost. We can work with you in person, over the phone, or on ZOOM. 

Copyright © 2021. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

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

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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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