Probate Division

Probate is a legal process through which the assets of a deceased person are properly distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are paid and proper distribution is made.

A will is a document executed by a person which disposes of his/her property after his/her death. It generally names a personal representative to administer the estate. After the death of the person, the custodian of the will must deposit the will with the Clerk of the Circuit Court, within ten (10) days after receiving information that the person is deceased.

No, an attorney is not necessary to file the will with the Clerk of the Circuit Court. However, you may want to consult with an attorney before filing so that he or she may determine whether Probate proceedings will be necessary.

The property will be distributed in accordance with Florida Law.

Probate proceedings are initiated with the filing of a Petition by the person asking to be appointed personal representative. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.

There are four basic types of proceedings for administering the decedent’s estate.

1. Formal Administration: This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.
2. Family Administration: Family administration is normally used when the decedent leaves only personal property and the value of this property does not exceed $60,000.
3. Summary Administration: Summary administration may be filed when the value of the entire estate does not exceed $25,000.
4. Disposition of Personal Property Without Administration: The disposition is filed to request release of assets of the deceased to the person who paid the final expenses; such as funeral bills or medical bills for the last 60 days. This procedure may be accomplished with the filing of a petition. The form required to file the disposition is available from the Clerk of the Circuit Court in the Probate Division.

The following must be provided:

1. If the decedent has a will, it must be filed with the Clerk of Circuit Court within ten days of the notice of death.
2. Itemized, paid funeral bills.
3. Paid receipts for any medical expenses incurred sixty days prior to death.
4. Death certificate.
5. Statement regarding the type of asset to be released.
6. Identification of the person filing.
7. Filing fee as set by Florida Statutes.

The Court will enter an Order either allowing or disallowing the release of the assets. A certified copy of the Order is then mailed to the petitioner.

A guardian is a person who has been appointed by the court to act on behalf of a ward’s person, property or both.

A guardianship is established when a person is unable to legally act on his/her own behalf. This may be due to minority, (he or she is not of age), or due to mental and/or physical incapacity. A competent adult may also petition the court to appoint a voluntary guardian for himself or herself.

A person 18 years of age or older who has an interest in the protection of the personal or property rights of the incapacitated person may qualify to serve as a guardian. An application for “Appointment of Guardian” must accompany the petition. The court will review the application to ensure the guardian to be appointed will best serve the needs of the ward.

A guardianship must be established for the property of a minor child when an amount over $15,000 is to be paid to the minor. This may occur through an inheritance or through a settlement of a legal action. Guardianship of the person of a minor child may need to be established if both natural parents are deceased, incapacitated or unavailable.

An incapacitated person is a person who has been judicially determined to lack the capacity necessary to manage at least some of his or her property or who cannot provide for his or her own health and safety.

Without adjudication of incapacity, the court shall appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is incapable of the care, custody and management of his or her estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician specifying that he or she has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his or her delegation of authority.

Unless the voluntary guardianship is limited, any guardian appointed under this section has the same duties and responsibilities as are provided by law for plenary guardians of the property, generally.

A voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated. A copy of the Notice must be served on all interested persons.

A competent adult may name a Pre-Need Guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity. The declaration must be signed by the declarant and two (2) witnesses.

A limited Guardian is a person who has been appointed by the court to exercise the legal rights and powers specifically designated in the court’s order. The Court will enter such an order after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her own person or property. The court may also enter such an order after a person has voluntarily petitioned for the appointment of a limited guardian.

A plenary guardian is a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her own person and/or property.

The legislature finds that private guardianship is inadequate where there is no willing and responsible family member or friend, other person, bank, or corporation available to serve as guardian for an incapacitated person, and such person does not have adequate income or wealth for the compensation of a private guardian. The legislature intends through this act to establish the Statewide Public Guardianship Office, and permit the establishment of offices of public guardian for the purpose of providing guardianship services for incapacitated persons when no private guardian is available. The legislature further finds that alternatives to guardianship and less intrusive means of assistance should always be explored, including, but not limited to, guardian advocates, before an individuals rights are removed through an adjudication of incapacity. The purpose of this legislation is to provide guardian only to those persons whose needs cannot be met through less drastic means of intervention.

A Probate Court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate or if the person has voluntarily petitioned for the appointment of a guardian advocate. Except as otherwise specified, the proceeding shall be governed by the Florida Rules of Civil Procedure.