Common Questions Regarding Florida Probate

We often speak to clients who are dealing with probate matters for the first time. We wanted to take a moment to address some of the common questions we get and help you to better understand what happens during the process. The Hinson Law Firm, P.A., welcomes the opportunity to speak with you for more detailed information about your specific case. Call us at 904-901-4809 or contact us online.

What is probate?

The probate court in Florida is a division of the circuit court whereby judges oversee the administration of an individual’s possessions after they pass away. There are various types of probate filings, including Disposition of Personal Property without Administration, Summary Administration, Formal Administration, and Ancillary Administration.

How do I know what type of probate I need?

Generally, the type of probate filed is based on the nature and value of the assets belonging to an estate. Not all assets are estate assets. Estate assets are those which were held solely in the name of the person who passed away (commonly referred to as the “Decedent”) at the time that the Decedent died.

The type of probate you require is typically based on two issues:

  1. The total value of the estate assets. (Note, there are certain assets that may be determined exempt from this calculation. For example, a person’s homestead is not calculated in the determination of the value of the estate.)
  2. The nature of the assets and time elapsed since the Decedent’s death. If an asset requires the appointment of a personal representative to access, transfer, or otherwise alienate property, you may be required to establish more formal proceedings in order to obtain the court appointment of a personal representative regardless of the value of estate assets. If the Decedent has been deceased for more than two (2) years, you may qualify for a less formal probate process to accomplish the transfer of the Decedent’s assets.

Am I required to hire an attorney?

Florida Probate Rule 5.030 requires that every personal representative be represented by an attorney admitted to practice in Florida, except if that personal representative is the sole interested person in the estate. If there is more than one beneficiary of the estate and your estate requires the appointment of a personal representative, you must hire an attorney.

How long does probate take?

The length of time between starting a probate case and the actual distribution of the Decedent’s assets varies depending on the nature of the case. Less formal probate matters can sometimes be handled within a week. More formal proceedings take longer. There are three general phases to a formal probate case:

  1. Appointment Phase: This is the initial phase that consists of gathering the information and documents necessary to file a probate case, filing the probate case, and obtaining an appointment from the probate judge. This phase may also include the drafting and filing of petitions to a determination of exempt property (though a hearing is often not held on such petitions until after the Creditor Period).
  2. Creditor Period Phase: Aside from the assets of the Decedent, estates must also take into consideration and make (where estate assets are available) payments to valid creditors of the Decedent.
    If the Decedent has passed away within two years of when the personal representative is appointed, the personal representative must also publish a Notice to Creditors in a locally recognized newspaper/publication once the personal representative has been appointed. After publication, unknown creditors of the estate have three months to file a claim stating that they are a creditor of the estate. The personal representative must also notify known creditors directly with specific documentation, including a copy of the Notice to Creditors that was published.
  3. Distribution Phase: once all creditors have been provided notice and an opportunity to make a claim against the estate assets, the final phase of administration occurs. This phase includes the payment of creditors, hearings on petitions for exempt property, an accounting by the personal representative, ultimate distribution of assets, and subsequent discharge of the personal representative.

Formal probate administrations can last anywhere from 5 months to over a year, depending on the specific nature and needs that each case possesses.