FREQUENTLY ASKED QUESTIONS

Probate is the legal process, when a person dies, of recognizing a will, appointing a Personal Representative, establishing the homestead nature of the decedent’s real property, giving notice to creditors and beneficiaries, and distributing assets from the deceased person’s estate. There are multiple types of probate filings. The type of probate filings necessary in a specific case will depend on many factors, to include, nature of assets, existence of a will, amount of assets, whether real property was owned, whether real property is homesteaded, etc.

The Florida statutes cover both Testate (with a will) and Intestate (without a will) probate proceedings. Probate proceedings where there is no will are governed by the Intestate statute and the legal heirs of the deceased and the appointment of a Personal Representative will be determined pursuant to that statute.

A Personal Representative in Florida is the person appointed by the Probate Judge to administer the estate. The Person receives an Order Appointing Personal Representative and Letters of Administration. The person uses these orders to collect the assets of the estate such as bank accounts, investment accounts and/or sell real property (with court approval). The Personal Representative may also be required to make payments to creditors from estate assets, file an inventory, notify creditors, notify beneficiaries, make distributions to beneficiaries and otherwise handle the affairs of the estate.

When a person dies owning homestead property it is usually necessary to file a Petition to Determine Homestead in the Probate Court. Homestead property is governed by the Florida Constitution. When a person dies with homestead property and there is no will, there is specific constitutional language dictating who receives the homestead property. If there is a will, the devise in the will usually controls but the will must comply with the requirements of Florida law and cannot violate statutes protecting spouses. Generally, homestead property is not subject to the creditors of the estate. The most common exceptions to this protection from creditors are taxes, mortgages, and/or liens owned on the property.

An ancillary estate is filed when the deceased person owns assets/real property in multiple states and/or countries. An example is a Florida resident who passes away owning real property both in Florida and New York. The probate case would be filed in Florida to control distribution of assets in Florida and an ancillary estate would be filed in New York to control assets owned in New York.