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Florida Estate and Probate Law

When a person dies in Florida, the law automatically assumes that the title to all of that person’s property, and the responsibility for their debts’ transfers to their “estate”.  Florida law creates this legal entity, known as the Estate of John Doe, Deceased. This is to ensure that the deceased’s property is protected, allows for the transition of legal title from the deceased to the heirs.  

It is important to note that probate typically, is only necessary in the event that a person dies with assets title in his or her name solely, and that asset does not have a designated beneficiary.  Some assets are not subject to probate, for example: a life insurance policy with a designated as beneficiary, a bank account that has a designation to pays on death, or real property that is owned jointly with right of survivorship.

If a decadent dies with a Will, the first step is to determine whether the document is valid under Florida law.  If the document is not valid, the appropriate Florida Court would proceed as if the decedent died without a Will, and the “intestacy statutes” take the place of the Will.  You should seek the advice of an experienced and knowledgeable Florida Probate and Estate Planning attorney to determine whether a probate is necessary, and whether the decedent had a valid Florida Will. 

In Florida, under either the terms of the Last Will and Testament, or under the language of the Intestacy Statutes, a Personal Representative would be appointed to oversee the estate.  The Personal Representative has fiduciary duty to perform the duties and act in the best interest of the estate. Under the supervision of the appropriate Florida Court, a Personal Representative would gather all the information regarding the decedent’s property, and determine the valid creditors’ claims and oversee the payment. The Personal Representative would prepare an accounting of the assets and payments of the valid creditor claims, before the Estate is fully distributed to the beneficiaries and finally closed.  The probate process has many steps and requirements that can be complex. To ensure that you follow the correct processes and statutory requirements, including filing deadlines, you should seek an experienced and knowledgeable Probate and Estate Planning attorney to assist you. 

Florida Law requires every Personal Representative of an estate be represented by an attorney. If you have been designated as a Personal Representative of a Florida Estate, you should seek the advice of an experienced and knowledgeable Probate and Estate Planning attorney to assist you. 

What is a Fiduciary? In Florida, the Personal Representative of an estate is responsible for the administration of a decedent’s probate estate.  The Personal Representative has the fiduciary responsible for implementing and following the terms of a valid Florida Will.  

What is Probate? Probate is the process of distributing assets that did not have a pre-determined beneficiary and that were registered in the decedent’s sole name, through the appropriate Florida Court.  Even if there are no assets subject to probate, the original Will and a death certificate need to be filed with the probate court in the county of residence.  

To discuss this matter, or other Guardianship and Probate Administration matters, please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620, and visit my website at www.AnnMarieGildenLaw.com. 

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