Probate FAQ

    Probate FAQ

    Orlando Probate Attorney

    What is probate?

    Probate is the legal process used to distribute the assets of a decedent's estate after he or she dies. The court decides whether or not the will is valid, helps to identify and inventory the estate's assets, has the property in the estate appraised, sees to it that any debts or taxes owed by the estate are paid, and oversees the distribution of all remaining property as the will directs, or if there is no will, as state law directs.

    Is probate necessary?

    When a loved one dies, something must be done to make sure all of the affairs that the deceased has left behind are managed. Probate may also be necessary in cases where one wishes to transfer assets from the deceased's name to another beneficiary. In the state of Florida, the individual's estate has the discretion to choose how affairs will be handled. This is done by creating a will.

    What purpose does a will serve?

    The process of creating a will begins with the person who is filing on behalf of his or her estate. This must meet all of the reuqirements under Florida law to be valid, and should be signed by the individual and witnesses. The will contains directives, such as who is the personal representative of the will and which beneficiaries will be expected to receive assets and properties. The individual may also use the will to establish a trust. Without a will, Florida's probate law will take precendence over who will be the beneficiaries and how assets may be distributed.

    Where are probate papers filed?

    Probate papers are filed with the probate division of the clerk of the circuit court in the county where the estate is set up. Usually this is done in the county where the decedent resided at the time of his or her passing.

    Does all property have to go through probate when a person dies?

    Actually, all property of the decedent does not have to go through probate. Some property passes outside of the will, such as if a decedent owns a home with a spouse, and the property was held as joint tenants by the entirety. In such case the home passes automatically to the surviving spouse by operation of law, in other words, nothing extra has to be done. The property is merely deemed by law to be the sole property of the surviving spouse upon death of the other spouse.

    Who can be a personal representative?

    A personal representative can be a bank, an individual, or a trust company. An individual who is a resident of Florida, a spouse, a brother or sister, or another close relative can also serve as a personal representative.

    Why does a personal representative need an attorney?

    In most cases, a personal representative must be represented by an attorney due to the legal issues which may arise during the pendency of probate, and the Court will order that a personal representative retain an attorney. If the will directs that a certain attorney is used, the personal representative is not bound by that direction. Also, it is important to understand that the attorney for the personal representative does not represent the beneficiaries under the will. The attorney only represents the personal representative to help carry out his or her duties.

    Contact us for answers to your specific questions about estate planning and probate law.

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