Probate is the court-supervised transfer of assets to a descendant's heirs and beneficiaries after payment of creditors.
The first step in the probate process is to file the original will with the probate court. Florida law requires the person who has possession of the will to file the original will with the probate court within ten (10) days of the decedent’s death. Once a court has determined that the will filed is the latest version of a decedent’s last will and testament and that it has been executed with the formalities required by Florida law, the will has been admitted to probate. After a will has been filed with the probate court, the next step is to obtain Letters of Administration for the Personal Representative.
Typically, a decedent will have nominated an individual to serve as the Personal Representative of their estate in his or her will. A Personal Representative is usually a family member or close friend chosen by the decedent to perform the duties of winding up a person’s affairs through the probate process. A Personal Representative is synonymous with the term executor, which is more commonly used in the northern states. A Personal Representative is entitled to be compensated for the performance of their duties and is also a fiduciary to the beneficiaries of the estate and therefore has a legal duty of care to the beneficiaries to oversee and safeguard the assets.
After a will has been filed with the probate court, the next step is to obtain Letters of Administration which allows the individual nominated as the Personal Representative under the will to marshal the assets of the decedent, notify beneficiaries and creditors of the probate of the estate, value the assets of the decedent, pay out any valid creditors’ claims during the three month creditors’ claims period, file an accounting of the inflow and outflow of the assets into the estate and then distribute the remaining assets in accordance with the decedent’s will.
Also, if a non-Florida resident owned property in Florida at the time of their death, Florida law requires a probate proceeding to be commenced in Florida to transfer the decedent’s interest in the property onto their heirs. This is called an ancillary probate and is conducted at the same time as the probate action in the decedent’s state of residence at the time of his or her death.
Probate is a costly and time-consuming process, which in most cases can be avoided with proper estate planning. If you have assets, have children, have married for a second time or more, it is wise to spend time to setting up a proper estate plan which can avoid creditors claims.
However, if you are responsible for probating of an individual’s estate, your lawyer will need the following items and you can fill out and complete the probate intake form: