Probate is the legal process by which a person's debts are paid and assets owned by the decedent are distributed upon death. Sometimes a will is involved, sometimes not. While the probate matter may involve oversight by a Florida court, there need not be any formal lawsuit involved. Many probate matters are resolved without any type of litigation.
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.
DO I NEED TO PROBATE AN ESTATE?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent had a valid will the will must be admitted to probate in the Court in order to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called "Disposition of Personal Property Without Administration." This type of administration only applies in limited circumstances.
"Formal administration" is the more involved of the two kinds of Florida probate administrations. A formal probate administration requires a minimum of five months to complete, and may take longer.
Generally, a petition is filed to open the estate and a personal representative is appointed. A Notice to Creditors is published in a local newspaper, and creditors generally have three months in which to file their claims against the estate.
The personal representative can pay the debts according to Florida law and distributes the remaining estate according to the will or, if intestate (no will), according to Florida law. After all assets have been distributed, a petition for discharge is filed and the estate is closed.
Summary Administration is generally available if the value subject to probate is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.
Disposition Without Administration is available only if probate estate assets consist solely of property exempt from the claims of the decedent’s creditors and non-exempt personal property, the value of which does not exceed the total of (1) up to $6,000 in funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.