Why is Probate necessary?
Probate is necessary whenever a deceased person leaves titled assets in their name alone. A party then files a petition for probate that allows distribution of the decedent's assets. Probate is used for the following:
- To collect and determine the estate's assets and to protect the assets of the estate.
- To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes.
- To legally transfer ownership of real property.
- To determine who is entitled to share in the estate and to distribute the property to the proper parties.
Do I have to have an attorney to do a Probate or a Guardianship?
Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself/herself as guardian or personal representative.
How are Probate proceedings initiated?
Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed personal representative and/or to distribute property depending on the size and complexity of property. 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.
What is a Disposition of Personal Property Without Administration?
This type of proceeding is used to request release of the assets of the deceased to the heirs or other qualified parties. Under Section 735.301, Florida Statutes, the estate must consist of personal property exempt from claim of creditors (see Section 732.402 Florida Statutes), and nonexempt personal property that does not exceed the sum of preferred funeral expenses (which are now $6,000) and reasonable and necessary medical and hospital expenses from the last 60 days of the last illness. There cannot be any real estate in the estate.
What type of paperwork must accompany the form for filing a Disposition of Personal Property Without Administration?
The following must be provided:
- If the decedent has a will, it must be filed with the Clerk of Circuit Court within 10 days of the notice of death.
- Itemized, paid funeral bill. Receipt must identify individual paying bill.
- Paid receipts for any medical expenses incurred sixty days prior to death.
- Death certificate.
- Specific information regarding the type of asset to be released.
- Identification of the person filing.
- Filing fee as set by Florida Statute.
For Fees associated, please see Service Charges and Fees
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