Probate can be confusing, particularly when you are trying to understand the process while grieving the loss of a family member. Families often have immediate questions: Do we even need probate? How long will it take? Who pays the bills? Can we sell the house? What happens if there is no will?
At Gold Legacy Law, PLLC, I help personal representatives, beneficiaries, heirs, and families navigate probate proceedings throughout Florida. Below are answers to many of the questions I regularly receive about Florida probate.
Florida generally recognizes formal administration and summary administration, along with a much more limited procedure called disposition of personal property without administration.
Florida Probate Basics
1. What is probate in Florida?
Probate is the legal process used to administer certain assets belonging to someone who has died. The process can include identifying and protecting assets, determining beneficiaries, addressing creditor claims and expenses, and distributing the remaining property.
2. Does every estate have to go through probate in Florida?
No. Probate generally applies to assets owned individually by the deceased person that do not have another effective method of transferring ownership at death. Assets owned jointly with survivorship rights, properly funded into a trust, or payable to a designated beneficiary may avoid probate.
3. What assets have to go through probate in Florida?
Examples may include a solely owned bank account, individually owned investment account, individually titled real estate, vehicles, business interests, and personal property without an effective beneficiary or survivorship arrangement.
4. What assets do not go through probate?
Depending on how they are structured, non-probate assets may include trust-owned property, accounts with valid POD or TOD beneficiaries, life insurance payable to an individual beneficiary, retirement accounts with designated beneficiaries, and jointly owned property with rights of survivorship.
5. Where is probate filed in Florida?
A Florida probate proceeding is generally filed in the appropriate circuit court. Venue ordinarily depends on where the deceased person was domiciled at death, although different rules can apply in particular circumstances.
6. Can probate be avoided if there is a will?
No. A will does not avoid probate. Instead, a will provides instructions concerning the disposition of probate assets and can nominate the person who should serve as personal representative.
7. What happens if someone dies without a will in Florida?
Dying without a valid will is called dying intestate. Florida's intestacy laws determine which heirs inherit probate assets. The result depends on the family members who survive the deceased person.
Starting a Florida Probate
8. How do you start probate in Florida?
Probate generally begins by filing the appropriate petition and supporting documents with the probate court. The exact documents and procedure depend on the type of administration and the circumstances of the estate.
9. How soon after death should probate be opened?
There is no benefit to unnecessarily delaying an estate that requires administration. Property may need protection, bills may continue accumulating, and important creditor, tax, insurance, and real estate issues may require attention.
10. Who can open probate in Florida?
An interested person may petition the court to begin administration. In formal administration, the court appoints a qualified personal representative to administer the probate estate.
11. What happens to the original will after someone dies?
Florida law imposes requirements concerning production of the original will following death. If you possess the original will of someone who has died, you should promptly speak with a Florida probate attorney about the appropriate procedure.
12. What if we cannot find the original will?
The absence of an original will can create additional legal issues. Depending on the circumstances, it may be possible to establish a lost or destroyed will, but additional evidence and court proceedings may be required.
Personal Representatives
13. What is a personal representative in Florida?
A personal representative is the person or qualified institution appointed by the probate court to administer the estate. Florida uses this term instead of "executor" or "administrator."
14. What does a personal representative do?
Responsibilities can include locating, gathering, valuing, and safeguarding probate assets; addressing creditors; providing required notices; maintaining records; handling estate expenses; and ultimately distributing estate property.
15. Who gets to be the personal representative?
If there is a valid will, the person nominated in the will generally receives preference if legally qualified. If there is no will, Florida law establishes an order of preference for appointment.
16. Can someone who lives outside Florida serve as personal representative?
Sometimes. Florida places restrictions on nonresident personal representatives, but certain relatives may qualify even though they live outside Florida.
17. Can there be two personal representatives?
In appropriate circumstances, more than one personal representative may serve. Whether co-personal representatives are a good idea depends on the estate and the relationship between the proposed fiduciaries.
18. Can a personal representative be removed?
Yes. A personal representative may be removed under circumstances authorized by Florida law. Allegations involving mismanagement, conflicts, failure to perform required duties, or other fiduciary problems should be evaluated carefully.
Formal and Summary Administration
19. What is formal administration in Florida?
Formal administration is Florida's traditional court-supervised probate process. A personal representative is appointed and given authority to administer the estate.
20. What is summary administration?
Summary administration is an alternative Florida probate procedure available when statutory eligibility requirements are satisfied. It does not operate exactly like formal administration and generally does not involve appointing a personal representative to administer the estate in the traditional manner. Florida's current Probate Code addresses summary administration in Chapter 735.
21. Is summary administration always better than formal probate?
No. A shorter procedure is not automatically the better procedure. The estate's assets, debts, real estate, creditor issues, beneficiaries, litigation, and need for a personal representative's authority can make formal administration preferable even when another procedure might initially appear available.
22. What is disposition without administration?
Florida provides a limited procedure known as Disposition of Personal Property Without Administration for certain very small estates involving qualifying property and expenses. It is not a substitute for probate in every small estate.
How Long Probate Takes
23. How long does probate take in Florida?
There is no single timeline. An uncomplicated estate may move substantially faster than an estate involving creditor problems, real estate, tax issues, missing beneficiaries, litigation, or disputes between family members.
24. Why is my Florida probate taking so long?
Common causes include creditor procedures, property sales, tax matters, beneficiary disagreements, difficulty locating assets, contested claims, homestead issues, litigation, and delays obtaining necessary information.
25. Can beneficiaries receive money before probate is finished?
Sometimes interim distributions are appropriate, but the personal representative must be careful. Enough property may need to remain available for administration expenses, valid creditor claims, taxes, and other estate obligations.
Probate Costs and Attorney's Fees
26. How much does probate cost in Florida?
Probate costs vary considerably depending on the estate. Expenses may include filing fees, publication expenses, attorney's fees, personal representative compensation, appraisal expenses, accounting or tax services, and costs associated with maintaining or selling estate property.
27. Who pays the probate attorney?
When an attorney represents the personal representative in estate administration, reasonable compensation can generally be paid from estate assets. Florida law expressly addresses compensation for the attorney for the personal representative.
28. Is the Florida probate attorney's fee automatically 3%?
No. Florida law specifically requires disclosure that there is not a mandatory statutory attorney fee for estate administration and that the attorney's fee is not required to be based on the size of the estate. Fees are subject to negotiation. Florida law does, however, provide a schedule of fees presumed reasonable for ordinary services in formal administration, subject to the statute's requirements.
29. Does the personal representative get paid?
Florida law provides for compensation of personal representatives. The amount and whether compensation is taken can depend on the circumstances of the estate and applicable law.
Creditors and Debts
30. Do a deceased person's debts disappear when they die?
No. Valid debts may have to be addressed during estate administration. Florida has detailed procedures governing creditor notice, filing claims, objections, payment priorities, and limitations on estate claims.
31. Are beneficiaries personally responsible for the deceased person's debts?
Usually, beneficiaries do not become personally responsible for someone's debts merely because they are beneficiaries. However, debts and claims may affect what is ultimately available for distribution, and secured obligations can continue affecting the property securing them.
32. How are creditors notified during Florida probate?
The personal representative generally publishes a Notice to Creditors and must conduct a diligent search for known or reasonably ascertainable creditors and provide appropriate notice.
33. How long do creditors have to file claims?
Florida has specific statutory deadlines governing creditor claims, and the applicable deadline can depend on notice and other circumstances. Because missing these deadlines can have significant consequences, creditor issues should be addressed as part of the probate administration rather than relying on a general rule of thumb.
34. What happens if the estate does not have enough money to pay everyone?
Florida law establishes priorities for payment of estate expenses and obligations. The personal representative should not simply pay creditors in the order their bills arrive when an estate may be insolvent.
Florida Homestead and Real Estate
35. Does a Florida homestead go through probate?
Florida homestead is subject to unique constitutional and statutory rules. Whether a court proceeding is needed and how the property passes depends on ownership, the estate plan, and the surviving family members.
36. Who inherits a Florida homestead?
It depends on the family circumstances and whether the homestead was validly devised. For example, when homestead is not validly devised and the decedent leaves a spouse and descendants, Florida law generally gives the spouse a life estate with the remainder to descendants, subject to a statutory election by the spouse for a one-half tenant-in-common interest.
37. Can a house be sold during Florida probate?
Often, yes, but the procedure depends on whether the property is a probate asset, whether it is protected homestead, the authority granted to the personal representative, the will, and whether court approval is required.
38. What happens to a mortgage when the homeowner dies?
The mortgage does not disappear simply because the borrower dies. The debt remains secured by the property, and someone must address the loan if the family intends to retain or sell the property.
39. Who pays the mortgage, HOA, taxes, and insurance during probate?
The answer depends on the property's status, estate liquidity, who ultimately receives the property, and whether the property is protected homestead. These expenses should be addressed early because mortgage arrears, HOA assessments, taxes, and insurance problems can threaten the value of the property.
40. Can one heir live in the probate property?
Potentially, but occupancy can create questions about expenses, maintenance, rent, insurance, distributions, and the rights of other beneficiaries or heirs. The issue should be addressed rather than left to an informal family arrangement.
41. What happens if multiple heirs inherit the same Florida house?
The heirs may ultimately become co-owners unless the property is sold or another arrangement is made. Disagreements can develop concerning occupancy, repairs, expenses, sale, or division of proceeds, so early planning can prevent larger disputes.
Beneficiaries and Probate Disputes
42. What rights does a beneficiary have during Florida probate?
Depending on the beneficiary's status and circumstances, rights can include receiving required notices, obtaining information, objecting to certain actions, challenging aspects of administration, and ultimately receiving property to which the beneficiary is entitled.
43. Can a beneficiary challenge a will in Florida?
Yes, under appropriate circumstances. Challenges may involve issues such as improper execution, lack of testamentary capacity, undue influence, fraud, or other grounds recognized under Florida law.
44. What is undue influence in a Florida probate case?
Undue influence generally involves improper influence over the person making the will that affects the testamentary disposition. These cases are highly fact-specific and often involve relationships, circumstances surrounding execution, and the involvement of beneficiaries in preparing or obtaining the estate plan.
45. Can a personal representative also be a beneficiary?
Yes. Being a beneficiary does not automatically prevent someone from serving as personal representative. The individual still owes fiduciary duties and must administer the estate according to Florida law.
46. What can I do if I believe the personal representative is misusing estate money?
Do not ignore it. Depending on the circumstances, interested persons may seek information, accountings, court intervention, review of transactions, surcharge, or removal of a fiduciary. The appropriate remedy depends on the alleged conduct.
Special Florida Probate Situations
47. What is ancillary probate in Florida?
Ancillary administration may be necessary when someone domiciled outside Florida dies owning Florida property that requires probate. This commonly arises when an out-of-state resident owns a Florida vacation home, condominium, rental property, or other real estate. Florida's Probate Code separately addresses foreign personal representatives and ancillary administration in Chapter 734.
48. Can probate be reopened after the estate is closed?
Yes, in appropriate circumstances. Further or subsequent administration may be necessary when additional property is discovered or another matter requires additional estate administration after closing.
49. What happens if an asset is discovered after probate closes?
The family should not simply divide the asset informally. Depending on the circumstances, a subsequent administration proceeding may be needed to obtain legal authority to collect and distribute the newly discovered property.
50. Do I need a probate attorney in Florida?
For formal administration, the personal representative ordinarily works through qualified Florida counsel, and even seemingly simple estates can involve creditor, homestead, tax, fiduciary, and property issues. It is recommended personal representatives engage a qualified attorney. Note the attorney represents the personal representative in the probate proceeding—not the beneficiaries individually.
Need Help With a Florida Probate?
Probate is more than filing forms with the court. A family may need to deal with a home, mortgage, bank accounts, creditors, taxes, personal property, businesses, beneficiaries, and disagreements—all while adjusting to the loss of a loved one.
At Gold Legacy Law, PLLC, I help personal representatives, beneficiaries, heirs, and families navigate Florida probate, ancillary probate, probate litigation, trust administration, and related estate matters.
Our firm serves clients in Miami Lakes, Miami-Dade County, Broward County, Palm Beach County, and throughout Florida, including families who live outside Florida but need assistance administering Florida property.
Whether you have just lost a loved one and do not know where to begin, need help completing an existing probate, or have discovered a problem with an estate already under administration, we can help determine the appropriate next step.
Contact Gold Legacy Law, PLLC to schedule a consultation with a Florida probate attorney at 305-556-5209.