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Is Your Probate Estate Testate or Intestate?

When a Person dies in the State of Florida, it must be determined if there is an estate that will proceed through probate, and whether the estate is testate or intestate.

An estate is testate when the person who died, had a legally valid Will that is recognized by the Probate Court. As long as a Will was legally valid in a state other than Florida, the out of state Will is valid in the state of Florida. However, if the Will is not what is known as a self-proven Will, with the appropriate witnesses and notary attestations, then additional steps may be necessary to have that Will accepted by a Florida Probate Court. This is not an issue with a valid, self-proven Florida Will. The attorney representing the person designated to be the Personal Representative in the Will files a Petition with the Probate Court. The Petition will ask for an order to be entered accepting the Will, and appointing the designated person as Personal Representative of the Estate.  The probate attorney also will ask the court to issue Letters Testamentary, which act as proof to third parties such as financial institutions, that the Personal Representative is authorized to legally act on behalf of the estate, pursuant to the provisions of the Will that was accepted by the Probate Court.

If there is not a legally valid Will, then the probate process is intestate.  That means the State of Florida makes the Will by applying various Florida statutes as who can act as Personal Representative of the Estate, and also who will be determined to be considered beneficiaries to inherit the estate assets.

Your attorney will file with the Court pleadings to appoint a Personal Representative, through a Petition requesting an Order be entered appointing a Qualified Personal Representative, and issuing intestate Letters. Your attorney will refer to Florida Law regarding the person to be appointed Personal Representative and to determine all beneficiaries, all subject to court review and approval.

In a testate proceeding, the legally valid Will designates who will act as Personal Representative and who the beneficiaries are, and to what extent they will inherit the estate assets.  These are reasons to have a properly prepared legally valid Will, so you can designate who will be appointed as your Personal Representative, who will be designated as your beneficiaries, and to what extent they will inherit.

Contact an experienced Probate attorney to assist you, and do not let the state make these important decisions for you and your family.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create an attorney-client relationship.