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Answers to Frequently Asked Questions about Probate

Probate FAQs1. What is Probate?

Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries for their inheritance. In most Florida counties, the probate system is conducted in a specialized probate division of the Circuit Court, under the oversight of one or more experienced probate judges.

2. How is Probate Initiated in Florida?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as Personal Representative, also known as the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition for Administration.

3. Who is Eligible to Serve as Personal Representative for a Florida Estate?

A bank or trust company operating in Florida, any individual who is resident in Florida, and a spouse or close relative who is not necessarily resident in Florida are all eligible to serve as the Personal Representative. Nonrelatives who are not resident in Florida are not eligible to serve as Personal Representative.

4. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, the person chosen by a majority of the beneficiaries in interest of the estate shall choose the Personal Representative. If there is no will, Florida law provides that the surviving spouse may serve, or, if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest shall serve.

5. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate estates to retain a Florida probate attorney. Although the Florida probate forms are available to the public, these are of no use to a non-attorney.

6. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal Representative, based on a percentage of the assets of the probate estate.

7. Is the Family of a Deceased Person Entitled to a Portion of the Estate?

Florida law provides for a family allowance for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, thirty percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Florida resident is entitled to disinherit adult children, for any or no reason. Of course, if it can be shown that the adult children were disinherited as a result of the influence of another, they may have recourse through the probate court.

8. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, particularly in the case of a surviving spouse choosing to take an elective share against the estate. This would include pay on death accounts, jointly titled accounts, and life insurance proceeds.

9. How is Distribution of the Estate Handled if there is no Will?

Florida law sets forth rules for the distribution of an estate if there is no will, known as the laws of intestacy. A general summary is as follows:

  • If these is a surviving spouse and no lineal descendants, the surviving spouse is entitled to the entire estate.
  • If there is a surviving spouse with lineal descendants, and all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $20,000 of the probate estate, plus one-half of the remainder of the probate estate. The descendants share in equal portions the remainder of the estate.
  • If there is a surviving spouse with lineal descendants, and not all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to one-half of the probate estate, and the descendants of the deceased share the other half of the estate in equal shares.
  • If there is no surviving spouse and there are descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of their deceased parent.
  • If there is no surviving spouse and no children or other descendants, Florida law provides additional rules for distributing an estate in such circumstances.

10. Who is responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate. The estate tax return, Form 706, is filed by the Personal Representative. The Form 706 is due to be filed 9 months after the date of death.


FLORIDA ESTATE PLANNING, PROBATE, GUARDIANSHIP, & ELDER LAW IS COMPLEX AND CANNOT BE COVERED COMPLETELY IN AN ARTICLE. WHENEVER A SPECIFIC QUESTION OR PROBLEM ARISES, YOU SHOULD CONSULT AN ATTORNEY. PLEASE FEEL FREE TO CONTACT MY OFFICE TO SCHEDULE A FREE CONSULTATION: (941) 256-3965.

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