What is Probate in Florida?

Our Southwest Florida Probate Trial Lawyers Explain Probate

When a person dies, probate is the legal process used to identify and inventory the assets of the deceased (the decedent), pay off the decedent’s debts and tax obligations, and distribute any remaining property to the decedent’s beneficiaries. When a will exists it must be proved valid during the probate process.  In the event the deceased did not have a valid will, state law will generally dictate how the probate assets are to be distributed among the decedent’s heirs.  

Often individuals and families not only want to know what probate is in Florida, they also want to know why the process exists.  The probate process operates to transfer the ownership of probate assets from the decedent to his or her beneficiaries.  When a valid will exists, it must be admitted to probate in court in order to allow for the ownership of the decedent’s property to pass to the beneficiaries. If the decedent dies intestate (without a will), the probate process works to distribute the decedent’s property to those persons who are entitled to take ownership under Florida law.

Summary Administration and Formal Administration

In Florida, probate is a court-supervised process.  The Florida Probate Code (Florida Statutes Chapters 731 through 735) governs the probate process and the rules for probate proceedings are set forth in the Florida Probate Rules Parts I and II.  

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

(1) Summary Administration, and
(2) Formal Administration

In certain limited circumstances, a non-court supervised proceeding called “Disposition of Personal Property Without Administration” may be available.

If the value of the decedent’s estate is not more than $75,000 (less the value of any property exempt from the claims of creditors), or the decedent has been dead for more than two years, any beneficiary or individual named in the will as the personal representative of the decedent may petition for summary administration of the estate.  If the court enters an order of summary administration in response to a petition, the order will allow for the immediate distribution of the decedent’s assets.  

When an estate is not eligible for summary administration, probate will generally proceed through the formal administration.  Many individuals may be involved in the formal administration process, including:

• Circuit court judge
• Clerk of the circuit court
• Personal representative (executor)
• Attorneys
• Creditors
• U.S. Internal Revenue Service (IRS)

The circuit court judge will supervise the probate proceedings.  The judge will hold hearings to resolve any questions or disputes that may arise during the course of the probate administration.  He or she will rule on the validity of the decedent’s will and where the will names a personal representative, the judge will determine whether the person or institution named is qualified to serve as the decedent’s personal representative.  If a valid will does not exist, the judge will appoint a personal representative, according to Florida law, to administer the estate.  The judge will also identify and confirm the beneficiaries who are to receive the decedent’s property.  

Probate can be a complicated and lengthy process.  We encourage you to learn more about probate administration by reviewing the Probate Information pages on our website.