Florida Probate Law and Your Rights
Posted on 21. Aug, 2009 by Attorney in Probate Law
Probate is the process by which an estate’s property is transferred to its creditors and beneficiaries. If the deceased left a Will, and it’s determined to be valid, the assets will be distributed according to the Will. If the deceased died without a Will, the Will cannot be located or is determined to be invalid then there are probate laws that determine how the estate will be distributed.
Will
A Will is a document that describes the wishes of the decedent as far as how their assets will be distributed upon their death. It will also appoint someone to act as the Personal Representative of the Estate. In order for a Will to be considered valid it must contain the signature of the deceased along with the signature of two witnesses. Both witnesses must sign in the presence of the decedent and each other.
Probate Assets
Probate assets are assets that are owned solely by the deceased. Any joint accounts or jointly owned property automatically pass to the co-owner. However, anything listed as payable to the decedent’s estate is a probate asset.
Personal Representative of the Estate
The Personal Representative of the Estate is the person appointed to the position in the Will. The Personal Representative of the Estate is responsible for initiating probate proceedings. If there is no valid Will then any creditor or beneficiary of the estate can initiate the Probate process.
Some of the duties that the Personal Representative of the Estate are responsible for include:
- Identifying which of the decedent’s assets are probate assets
- Publishing a “Notice to Creditors” in the local newspaper that informs potential claimants that they should file claims against the estate
- Pay any valid claims and object to claims that are not valid
- File any final tax returns and pay any remaining taxes due
- Distribute the assets to the beneficiaries
How Are Probate Assets Distributed When There is No Will?
In the case that there is no Will, probate assets are distributed according to the following rules as described in Florida law:
- If there is a surviving spouse and no children, all the probate assets go to the spouse.
- If all descendants are the children of the deceased and the surviving spouse then the spouse receives the first $60,000 of the assets plus half of the remaining assets.
- If one or more of the children of the deceased are not the children of the surviving spouse then half of the assets go to the spouse and the other half to the descendants.
- If there is no surviving spouse then the assets go to the children of the deceased.
A Probate Lawyer’s Role
A Probate Lawyer can help guide you through the probate process. There are many complicated laws involved in probate and they can be confusing and frustrating to non-attorneys. The responsibilities of the Personal Representative of the Estate should be guided by a lawyer experienced with probate law in Florida.
There are other instances of Probate Law that can benefit from the advise of an attorney. Some examples are contesting the validity of a Will, the determination of heirs or determining duress or diminished mental capacity.
This article is for informational purposes and does not constitute legal advice. Please contact an attorney in your local area for more information about Probate Law in Florida.
