If you are having to deal with the probate process and Florida probate court for the first time, it can be a little overwhelming. It’s natural to have a lot of questions and to feel a little lost as you step into the process for the first time, so today we want to talk about 6 things that you should know.
Florida Probate Court: 6 Things You Need to Know
1. Attorneys and Probate Court in Florida
While a probate attorney is not required in Florida, it is advised because the process can get quite involved. There are a few things that you should know about attorney representation, however.
- Any attorney representing a client in probate court in Florida MUST be admitted to practice law in Florida.
- If a guardian or representative is an attorney who is admitted to practice law in Florida, they may represent themselves in probate court.
- Although the state does not require that a guardian or representative be represented by an attorney in probate court, there are a few circumstances where the law requires attorney representation.
2. The Necessity of Probate
Probate court is necessary because it allows for the “neat” closing of the decedent’s estate. Probate ensures that the wishes of the deceased are heeded as well as make sure that the wishes of the decedent left in the form of a will are actually the wishes of that person and are not forged. Lastly, probate oversees the transfer of property from the deceased person’s estate to the individual who is set to inherit that property.
3. The Probate Fee
There is a probate fee that must be paid in order for the deceased person’s estate to be processed. This fee should be paid when the will of the deceased and probate papers are filed with the clerk of the circuit court. It’s necessary to pay this fee in order for the entire process to begin motion. This must all be filed with the clerk of circuit court in the district in which the now-deceased individual lived. Once the process begins, the paperwork and documents that are filed will be given a file number. The clerk of the court then uses that file number to keep track of all documents that have been filed for the case.
4. Family Members and Probate
Things can get a little complicated when it comes to the probate process and family. For some families, the process is relatively easy, but in other cases, it can cause family rifts and even lead to family members contesting the will. This is why it’s always best to ensure that all of your estate plans are made prior to your death so that your wishes are very clear. The court can then use that information to make sure that your assets are distributed as per your wishes. Even then, though, family members can disagree on how you decided to bequeath your estate property and attempt to argue their case in probate court. With a proper estate plan in place, though, your wishes are more likely to be followed and the contestant is less likely to make their case adequately.
5. Beneficiaries of the Estate
Beneficiaries of the estate are usually named in the last will and testament of the deceased person. If there is no will left when the estate owner passes away, the state follows a specific set of laws and regulations to govern how the estate assets will be distributed. This pattern of distribution follows a hierarchy of family members established by the state. This type of distribution of assets can be quite complicated (which is why you NEED a will in place!) and can draw out the probate process.
If you have very specific wishes or wish to exclude an individual from inheriting from your estate upon your death, you have the right to disinherit them by using your last will and testament as a means to convey that message.
6. Fees Involved with Probate
We have already mentioned the filing fee that’s required when filing the initial paperwork for the probate process to begin, but there are also other expenses involved with probate. For example, if you hire an accountant and/or an attorney to help you with the probate process, the fees associated with those expenses are expensible (but within reason!)
In the state of Florida, there are laws on the books that limit how much a probate attorney or financial advisor can charge as their fee for probate proceedings. Of course, fees are going to vary based on the value of the estate and the amount of work required to complete the probate process. Additionally, there is a fee that is paid to the personal representative of the state. This is compensation for the time and work that they put into the probate procedure.
There are a few ways that the personal representative’s fees are established, these include:
- Being established in the will
- Being established via a contract between the personal representative and the decedent;
- Being established by the personal representative and the persons who will be paying for the fee;
- Being established by the “reasonable” amount by calculation according to current Florida law.
However it is established, the fee paid to the individuals involved in the probate process must be “okayed” by the judge presiding over the case in probate court.
Do You Need a Probate Attorney As You Face Florida Probate Court?
A probate attorney can help you to navigate the probate court process and answer your questions. If you are in or around St Petes, Florida and are looking for a Florida probate attorney, Weidner Law can help, just give us a call today at 727-954-8752 to set up a consultation with our experienced real estate attorneys.