What is Probate and Why Should I Care?


Probate takes place after someone dies (decedent). It ensures that any possessions and property that
they owned are distributed to the proper people (beneficiaries or heirs) and to pay any outstanding
debts or taxes they owed.

Probate is a judicial process. Property and possessions are distributed according to what is stated in the decedent’s last will and testament. If there is no last will and testament, property is distributed as directed in the Florida statutes.

Under Florida law there are two main types of probate administration:

  1. Formal Administration – For estates with creditors and/or assets in excess of $75,000 (excluding homestead).
  2. Summary Administration – For estates with less than $75,000 in non-homestead assets and no creditors. Also used if more than two years have passed since the death of the decedent.

What Happens if there is no Will?

When someone dies without a valid will, they are considered to have died “intestate.” Assets are distributed to heirs in an order determined by Florida statute. Generally, to direct descendents (children, grandchildren); if none, then to parents; if none, then to siblings. Probate assets are rarely turned over to the state of Florida. The state will only take over the decedent’s assets if they have no heirs.

Who is in Charge of the Probate Proceedings?

A circuit court judge presides over probate proceedings and they will appoint a personal representative (person, bank, or trust company) to handle the administration of the estate. The personal representative has the authority and obligation under Florida law to administer the probate estate.

Who Will the Court/Judge Appoint to be a Personal Representative?

If the decedent has a valid will, the judge appoints the person or institution named in that will if they are legally qualified to serve.

If the decedent had no will, the surviving spouse has the first right to be appointed. If there was no spouse, or the surviving spouse declines to be representative, the person or institution to be a personal representative will be chosen by the majority in interest of the decedent’s heirs.

Is an Attorney Required for Probate?

Florida law states that except for when the personal representative is the sole interested person, every personal representative must be represented by an attorney admitted to practice in Florida.

How Daniels Law Can Help?

Daniels Law is experienced in all aspects of probate administration. During your initial consultation, we can discuss what your family is going through and examine the problems introduced by probate. This legal process can often be an emotional experience for families. We can help by educating our clients and keeping them informed throughout the legal process, which results in less emotional stress during what can be a difficult period for grieving families. Give us a call today! (239) 766-6510

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