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Probate

The Probate Office handles court-supervised proceedings for establishment of wills, settlement of decedent's estates, supervision of guardianships for minors and incapacitated persons, and filing of mental health cases. The Probate Office stores wills that have been deposited with them after the death of the decedent.

Estates

Florida Probate Rules require a Florida licensed attorney to represent the personal representative of the estate in almost all instances. An estate is testate if there is a will or intestate if the decedent did not have a will. The will usually names the personal representative to administer the estate. A petition may be filed seeking the appointment of a qualified personal representative. There are three types of administration of a decedent's estate.

  • Formal Administration is used when the assets include real estate or other assets that exceed $75,000.00 in value. It is necessary to appoint a personal representative to administer the estate.
  • Summary Administration is used if the assets that are solely in the decedent's name do not exceed $75,000.00. This procedure is also used if the decedent has been dead for more than two (2) years or there is a provision for payment of creditors' claims.
  • Disposition of Personal Property without Administration is a non-administrative proceeding. This proceeding is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

Guardianship

A guardianship is a legal proceeding in the Circuit Courts of Florida in which a guardian exercises the legal rights of an incapacitated person or a minor child. A guardian is an individual or institution, such as a bank trust department, appointed by the Court to care for an incapacitated person or a minor child. All guardianship matters in the State of Florida require an attorney (Rule 5.030).

Guardianships for an adult person are filed when it is believed that a person is not mentally capable of taking care of himself/herself. The Court appoints a committee to evaluate the person and make their report to the Court. Guardians can be appointed as guardian of the person only, property only, or person and property. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the Court will have the ward examined and can restore some or all of the person's rights, upon filing proper paperwork.

Guardianships for minors are filed when the minor child has inherited money or has property in excess of $15,000.00. A guardian of the property is all that is needed if the minor child's parents are living. If the minor child's parents are deceased or unable to be appointed guardians, he/she may need a guardian of the person and property.

Caveat by Creditor/Interested Party

If any creditor or interested party of an estate is apprehensive that an estate may be administered or that a will may be admitted to probate without their knowledge, they may file a caveat with the Court. This document assures that if a Probate administration has been filed or is ever filed for a decedent, the Clerk shall notify the Caveator.

Notice of Trust

Upon the death of a settlor of a trust, the trustee must file a Notice of Trust with the Court. If a probate proceeding has already commenced for the decedent, the Notice of Trust is filed in the existing case. The Clerk sends a copy of the notice to the petitioner for the probate administration or the caveator and a notice of the administration or caveat to the trustee. If there is no existing case, the proper notices are sent when an administration or caveat is filed.

Marchman Act - see   Mental Health

Wills

A Will is an instrument by which a person makes a disposition of his property to take effect upon his death. The original last Will should be filed with the Clerk of the Circuit Court and County Comptrollers office within 10 days from the date the holder of the Will was notified of the death of the decedent. An attorney is not needed to file a Will for safekeeping. An attorney may be consulted to determine if there is a necessity for probate proceedings.

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