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Probate

Did you know that the person who has custody of a will must deposit it in the probate court within 10 days after learning that the person who made the will has died?[1]

1. WHAT IS PROBATE?

Probate generally is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses of administration, and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

2. WHY IS PROBATE NECESSARY?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the Court, it will be ineffective to pass title to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership to the decedent’s assets to those persons who are to receive them under Florida law.

Probate also is necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid, or their claims extinguished, if certain procedures are correctly followed.

3. WHAT IS A PERSONAL REPRESENTATIVE?

The personal representative is the person, bank, or trust company appointed by the Court to be in charge of the administration of the decedent’s estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix”.

4. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

A personal representative is legally required to hire an attorney under most circumstances.[2]  It is important for the personal representative to engage a qualified attorney to assist in the administration of the decedent’s estate and address the many legal issues likely to arise, even in the simplest estate administration.

The attorney for the personal representative advises the personal representative on their rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s estate. However, if the personal representative mismanages the decedent’s estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.

A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may engage the attorney of his or her choosing.

5. WHO CAN BE A PERSONAL REPRESENTATIVE?

The personal representative can be an individual or a bank or trust company, subject to certain restrictions.

To qualify to serve as personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative

6. WHO WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?

It the decedent had a valid will, the Court will appoint the person named by the decedent in his or her will to serve as personal representative, as long as named person or bank or trust company is legally qualified to serve.

If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the Judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the Court will appoint a personal representative after a hearing is held for that purpose.

7. WHAT ARE PROBATE ASSETS?

Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For example:

  • ·         A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death (POD) or transferable on death (TOD) to another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
  • ·         A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is usually not a probate asset unless payable to a minor, but a life insurance policy annuity contract or individual retirement account payable to the decedent’s estate is a probate asset;
  • ·         Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
  • ·         Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive, but is intended to be illustrative of the importance of how assets are titled when determining how those assets will be distributed after death.

8. WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?

The primary purpose of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the Clerk of the Circuit Court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s estate, must be paid before making distributions to the estate beneficiaries. The Court will require the personal representative to file a report to advise of any claims filed in the estate, and will not permit the estate to be closed unless those claims have been paid or otherwise disposed of.


[1] § 732.901 (1), Florida Statutes.

[2] Rule 5.030 (a), Florida Probate Rules.

This is just a brief overview of probate in Florida. The Jacksonville, Florida probate lawyers and attorneys of Cramer Law Center can assist the personal representative in all aspects of the probate process, including representing the personal representative in the probate court proceedings.

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Cramer Law Center, P.L.
3030 Hartley Rd., Suite 290
Jacksonville, Fl. 32257
Duval County
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