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Probate Q&A

Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries. Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death.

Why is probate necessary? Probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.

What is a will? A will is a written document signed by the decedent and witnesses, which meet formal requirements set forth by Florida law. A will usually designates a personal representative to administer the estate and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee.

What happens to probate assets if there is no will?

If there is no will, the assets of the decedent will be distributed to the intestate heirs.

Where are probate papers filed? Probate papers are filed with the Clerk of the Circuit Court, usually for the county where the decedent lived. A filing fee must be paid to the clerk to commence the probate administration. The clerk assigns a file number and maintains a docket sheet, which lists all papers filed with the clerk for that probate administration.

Who supervises the probate administrator? A Circuit Court Judge presides over probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also referred to simply as “letters.” This document shows to the world the authority of the personal representative to act. The Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called “orders.”

What is a personal representative and what does a personal representative do? The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate.

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

Why does a personal representative need an attorney? In almost all instances the personal representative must be represented by a Florida attorney. Many legal issues arise, even in the simplest estate administration. The attorney for the personal representative advises the personal representative on 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 the beneficiaries. A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding on the personal representative.

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