Probate / Guardianship FAQs

What is Probate?
Probate is a legal process through which the assets of a deceased person are distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are disposed of and proper distribution is made.

Why is Probate necessary?
Probate is necessary whenever a deceased person leaves assets in their name alone. A party then files a petition for probate that allows distribution of the decedent's assets. Probate is used for the following:

1. To collect and determine the estate's assets and to protect the assets of the estate.
2. To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes.
3. To legally transfer ownership of real property.
4. To determine who is entitled to share in the estate and to distribute the property to the proper parties.

Are there different types of proceedings that can be filed depending on the size of the estate?
There are 7 basic types of proceedings for administering the decedent's estate:

1. Summary Administration: May be filed when the value of the entire estate does not exceed $75,000, or when the decedent has been dead for more than 2 years.
2. Formal Administration: Proceeding used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the Personal Representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the Personal Representative so that he/she may complete the administration of the estate.
3. Disposition of Personal Property Without Administration: Is filed to request release of assets of the deceased to the heirs or other qualified parties when the value of the assets are less than the final expenses of the deceased consisting of the funeral bill and medical expenses for the last 60 days. This procedure may be accomplished with the filing of a petition. The form required to file the disposition is available from the Clerk of Circuit Court in the Probate Division. This cannot include real property.
4. Petition to Admit Foreign Will: The purpose is to transfer title of real property in this state of a nonresident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting will to probate. This petition may only be filed if the decedent has been dead for more than two (2) years or at any time after the domiciliary PR has been discharged if there has been no proceeding to administer the estate of the decedent in this state.
5. Ancillary Administration: Used when it is necessary to appoint a personal representative to act on behalf of the estate when the decedent is a nonresident because his/her assets are titled in their name alone. The petition must be accompanied by authenticated copies of the probate proceedings from the state the decedent was a resident of or, if no estate was required, an authenticated copy of the will, or if no will, then the non-resident petition must state that there are no proceedings in another state or country. Authority is given to the petitioner by the Court when Letters of Administration are issued to the Personal Representative so that he/she may complete the administration of the estate.
6. Notice of Trust: Is to be filed with the Clerk upon the death of a settler of a trust. The Notice of Trust must contain the settler's date of death, the name of the settler, the title of the trust, if any, the date of the trust, and the name and address of the trustee. Trust cases in the Probate Department are usually opened to appoint a Successor Trustee on an existing Trust or to dissolve an existing Trust.

What is a Will?
A will is a document executed by a person that disposes of his/her property after death. It generally names a personal representative to administer the estate.

Is my Will valid even though it was drawn up in another state?
As long as it is valid in the state in which it was drawn up, it is valid in the state of Florida.

When and where should my Will be filed?
The custodian of the will must deposit the will with the Clerk of the Circuit Court, within 10 days after receiving information that the person is deceased. The custodian must supply a certified death certificate to the Clerk upon deposit of the will.

What is a Will for safekeeping?
The custodian of a will must deposit the will with the Clerk's Office in the county where the decedent resided within ten days after receiving information of the death of the maker of the will. The custodian must supply a certified copy of the death certificate.

Is an attorney needed to deposit a Will?
No. However, the custodian of the will may want to consult with an attorney before filing so that he or she may determine whether probate proceedings will be necessary.

Can a Will be deposited with the court for safekeeping if the testator (Will Maker) is still alive?
No.

Is there a fee for depositing a Will?
Yes. The fee for depositing a Will is $1.00.

What happens if a person dies and has left no will?
The property will be distributed in accordance with Florida law.

What happens if there is a will filed but no personal representative has been named?
It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate.

What does Probating a Will mean?
It means taking all legal steps necessary to assure a will is valid and to admit the will to probate.

Can a copy of a Will be probated?
Yes, through an attorney that is knowledgeable in probate.

Do I have to have an attorney to do a Probate or a Guardianship?
Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself/herself as guardian or personal representative.

How are Probate proceedings initiated?
Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed personal representative and/or to distribute property depending on the size and complexity of property. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.

What is a Caveat?
A caveat is a written notice filed with the Clerk by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice.

Can you tell me if there is a case open on my father, or a friend, etc?
We do not do searches over the phone. You may locate this information through the Public Records section of this website. Or you may mail in your request. You must send in a self addressed, stamped envelope with a $1.50 search fee per name and last known address, or social security number of deceased, or date of death. Please mail your request to: Clerk of Court, Probate Division, PO Box 700, Fort Pierce, FL 34954. Make checks payable to Clerk of Court.

What is a Disposition of Personal Property Without Administration?
This type of proceeding is used to request release of the assets of the deceased to the heirs or other qualified parties. Under Section 735.301 , Florida Statutes, the estate must consist of personal property exempt from claim of creditors (see Section 732.402 Florida Statutes), and nonexempt personal property that does not exceed the sum of preferred funeral expenses (which are now $6,000) and reasonable and necessary medical and hospital expenses from the last 60 days of the last illness. There cannot be any real estate in the estate.

What type of paperwork must accompany the form for filing a Disposition of Personal Property Without Administration?
The following must be provided:

1. If the decedent has a will, it must be filed with the Clerk of Circuit Court within 10 days of the notice of death.
2. Itemized, paid funeral bill. Receipt must identify individual paying bill.
3. Paid receipts for any medical expenses incurred sixty days prior to death.
4. Certified death certificate.
5. Specific information regarding the type of asset to be released.
6. Identification of the person filing.
7. Filing fee as set by Florida Statute.

How do I get into a deceased person's safe deposit box?
If you are entitled to obtain access to the safe deposit box, you must go through an attorney to do so.