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Probate

What is probate?
Probate is a proceeding pertaining to the administration of an estate that ultimately results in the legal transfer of property and title from a decedent’s (person who has died) individual name to that of his/her beneficiaries.

My mother/father died with a will. Do I have to go through probate?
A probate proceeding is not dependent on whether or not a person has a will. A will merely informs the court how the property is to be distributed. All property in a decedent’s individual name that is without beneficiary designations must go through probate.

My mother/father died without a will. Who gets what?
The Florida statutes define how property is to be distributed when a decedent dies without a will. It depends on a few factors, and one should consult an attorney to find out which statutes apply and how they will effect your situation.

My mother/father just died and we owned a piece of property titled in both of our names. Do I automatically own it now?
It depends. You probably should show the deed to an attorney. If the title on the deed reads “JTWROS” or “Joint Tenants With Right of Survivorship”, then the property might not have to go through probate. However, without those exact words, the property doesn’t have an automatic survivorship.

My wife/husband just died. We owned everything jointly. Do we need to open a probate?
No. Title held between two legally married persons is held as Tenants by the Entirety. A Tenancy by the Entirety can only be created between a husband and wife and by which together they hold title to the whole with right of survivorship so that, upon the death of either, the other takes whole to the exclusion of deceased heirs.

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What is the difference between an executor, a personal representative, and a trustee?
Both a Personal Representative and Executor are the names given to the person (or institution) you name in your will to carry out your wishes after you have died. Florida uses the title “Personal Representative”. A Trustee, on the other hand, is the person (or institution) you would name in a Trust to carry out the terms of your Trust if you had one.

I just found out I have been named the personal representative in a will. What should I do? Should I distribute everything listed in the will right away?
No. Every personal representative must be represented by an attorney admitted to practice in Florida who will approach the court in order to have the court approve the person named serve as the personal representative. However, a Florida attorney named as a personal representative may represent him/herself as personal representative at that hearing.

Also see Wills, Trusts, & Estate Planning