Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.

Is probate required in Florida?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries if the decedent did not have a will. Probate is also necessary to complete the decedent’s financial affairs after his or her death.

Do I Need a Lawyer for Florida Probate?

Yes, in almost all cases you will need a Florida Probate Lawyer. Except for “disposition without administration” (very small estates) and those estates in which the executor (personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney.

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Under what circumstances can probate be avoided

There are certain occasions where a probate application will not be necessary. This includes cases where: All property and bank accounts of the person who has died were held jointly with someone who is still living (e.g. a spouse or civil partner) The estate consists of only cash and personal belongings.

How Long Does Probate Take?

The formal probate administration usually takes 6-9 months under most circumstances – start to finish. This process includes appointing a personal representative (i.e., the “executor”), a 90 days creditor’s period that must run, payment of creditor’s claims and more.

How to Avoid Probate in Florida

In Florida, a person can avoid probate by using joint ownership with rights of survivorship, beneficiary accounts, lady bird deeds, and living trusts. Two people may own real estate or personal property as joint tenants with rights of survivorship (or JTWROS) 

What is the cost of probate in Florida?

Attorney fees in Florida can be the largest expense in the entire probate process. In fact, the state is one of just a handful that sets statutory fees based on the value of an estate. Fees can range from $1,500 to anywhere from one to three percent of the value, from $100,000 to $10M.

When You Need to Apply for Probate, and When You Don’t

By Roche Legal / 4 minutes of reading

Probate can be a confusing term. It’s often used interchangeably to mean both the process of administering the estate of someone who has died and the certificate you need to apply for in order to prove you have the right to do so.

Why is a Grant of Probate needed?

The purpose of a Grant of Probate is simple: it is a legal document that proves you have the authority to deal with an estate.

In the majority of cases, organizations such as banks and building societies will need to see this proof before they will allow you to access any accounts that were held by the person who has died.

You will also need a Grant of Probate before you are able to proceed with selling property on behalf of an estate.

Who is responsible for making the application?

The question of whether or not to apply for a Grant of Probate will be relevant to you if you have been named as an executor in a Will.

This will also apply to you if you are entitled to apply to be an administrator for someone who has died without leaving a valid Will. You can apply to be an administrator if you are over 18 and are the closest living relative of the person who has died (or if the closest living relative has nominated you).

In cases where there is no Will, the specific document you will need to apply for is called a Grant of Letters of Administration, but the function and application process is the same as for a Grant of Probate.

When do you need to apply for probate?

If you’re dealing with anything other than a very small or simple estate, it’s likely that you will need to apply for probate. This is especially likely to be the case if the person who has died was single, or if their spouse or civil partner died before them.

You will definitely need to apply for probate if:

  • You need to sell property on behalf of the estate
  • Any banks or organizations the person who died held accounts with have told you they will need to see the Grant of Probate in order to release funds

When don’t you need to apply for probate?

There are certain occasions where a probate application will not be necessary. This includes cases where:

  • All property and bank accounts of the person who has died were held jointly with someone who is still living (e.g. a spouse or civil partner)
  • The estate consists of only cash and personal belongings
  • The amount of money belonging to the estate is small (usually under $5,000) and any relevant banks or building societies have said they will release funds without a Grant of Probate

In cases where all property and bank accounts were held jointly, the ownership of the property or accounts would usually automatically transfer to the surviving party. For example, if a husband and wife owned all property as joint tenants and all bank accounts jointly, if one spouse died, the surviving spouse would automatically take ownership of the whole estate. In cases such as these, the surviving spouse would probably not need to apply for a Grant of Probate.

Will you need a solicitor?

It’s possible to apply for probate yourself or to engage a solicitor to handle the application for you.

For simple estates where you feel you can manage the winding-up process yourself, you might feel confident about applying without specialist help. In other cases, you may want some extra support to ensure you’ve put your application together correctly.

If you are responsible for administering a more complicated estate, it often makes sense to work with an experienced probate solicitor. This includes high-value estates, estates including foreign property or assets, estates that involve trusts, or estates where there is uncertainty regarding the Will.

In situations where you’re unsure if a Grant of Probate is necessary, a solicitor will be able to advise you on whether or not you need to apply.

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