Probate is a court-supervised process by which property of a decedent is retitled in the name of the beneficiaries and creditors are paid. The person in charge of this process is the Personal Representative (many states, other than Florida, call the person the “Executor”). The person who is seeking to be appointed Personal Representative needs to hire an attorney to assist them with the court procedure if they are not both the sole beneficiary and sole named Personal Representative (Rule 5.030, Florida Probate Rules).
It seems that many laypersons think that simply having a will avoids probate. That is not the truth. A will simply tells the Probate Judge who will receive the assets and who will be in charge of distributing them as Personal Representative. Likewise, a person cannot avoid probate by failing to draft a will. The state of Florida has written a will for those who do not have one and need to go through Probate. It is called “Intestate Succession,” giving you no control over who you leave your assets to (you may very much dislike the results).
As with any legal proceeding, there are technical aspects to probate administration that an experienced Probate attorney needs to be familiar with: beneficiaries and creditors need to be notified and legal notices published. Personal Representatives need to be guided in how and when to distribute assets and how to take creditors’ rights into account. A Petition to Appoint a Personal Representative may need to be filed and Letters of Administration obtained. Homestead property, which follows its own set of unique and complex rules in Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate. There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. Real estate may need to be sold to effectuate correct distribution of assets pursuant to the estate plan or merely to pay debts. Estate and income taxes must be considered if the estate exceeds certain thresholds. Other assets may simply need to be transferred from the decedent to his or her heirs. No one probate estate is exactly like another.
