Probate

A guide to Probate.                                            386.758.1054

This department maintains the files on probate estates, wills, trusts and guardianships for both minors and incapacitated persons. They monitor, file, and store all pending case files and all wills that have been deposited with the Probate Department. Probate is necessary whenever a deceased person leaves titled assets in their name alone. A party then files a petition for probate, which allows distribution of the decedent's assets. Guardianships are filed for both minors and incapacitated persons. However, all Guardianship matters in the State of Florida require an attorney (Rule 5.030). An individual, through their attorney, files for a guardian to be appointed for an adult person when they believe that person is not mentally capable of taking care of himself/herself. Mental Health appoints a committee to evaluate the person and make their report to the court. In some instances the adult person may be only physically unable to care for himself or herself and may need a guardian. Guardians can be appointed as guardian of the person only, property only, or person and property. Guardianships are also filed for minors when the minor child has inherited money or property in excess of $15,000.00 from a deceased relative, or received money from a settlement in excess of $15,000.00. In this case a guardian of the property is all that is needed if the minor child’s parents are living. If a minor child’s parents are deceased or unable to be appointed guardian, he/she may need a guardian of the person and property. Disposition of Personal Property Without Administration may be filed without the assistance of an attorney and are handled by the Clerks in the Probate Department. These are filed when the amount of the estate does not exceed the amount of the preferred funeral expenses and the expenses of the last 60 days of the last illness. The Clerk assists the public and the court by processing forms, verifying the assets of the decedent and preparing the Order allowing for distribution. Probate also handles Petitions to Appoint a Successor Trustee. This is a court appointed individual who is responsible for managing another's property. If there is a request for a new trustee, Probate screens the request to insure that all trust beneficiaries have agreed to the new trustee. As in all probate proceedings a hearing may be necessary since all probate, guardianship and trust cases are presented to the court for consideration of all orders.

Information about the types of Petitions filed.

Formal Administration: Formal Administrations are used when it is necessary to appoint a personal representative to act on behalf of the estate because the assets exceed the monetary limits for other types of administration or other special circumstances. The Court gives the authority to the Personal Representative at the time of the appointment and when Letters of Administration are issued to the representative so that he/she may complete the administration of the estate. See Florida Statutes 731, 732, 733, and 735. Summary Administration: Summary Administration may be filed when the value of the entire estate does not exceed $75,000.00 or that the decedent has been dead for more than 2 years. Any beneficiary, heir at law may file a petition for Summary Administration, or person nominated as Personal Representative in the decedents will. See Florida Statute 735. Petition to Admit Foreign Will: The purpose of this petition is to transfer title of real property in this state of a non-resident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting the will to probate. This petition may only be filed if the decedent has been dead for more than 2 years. See Florida Statute 734. Ancillary Administration: Ancillary Administrations are used when it is necessary to appoint a Personal Representative to act on behalf of the estate when the decedent is a non-resident and his/her assets are titled in their name alone. The petition must be accompanied by authenticated copies of the probate proceedings from the state the decedent was a resident of or if no estate was required an authenticated copy of the will, or if no will, then the non-resident petition must state that there are no proceedings in another state or country. The Court gives the authority to the Personal Representative at the time of the appointment and when Letters of Administration are issued to the representative so that he/she may complete the administration of the estate. See Florida Statute 734. Caveat: A caveat may be filed with the Clerk by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice. See Florida Statute 731. Conservatorship: Conservatorships are used when a resident of this state is an "absentee". This could be someone who is a member of the Armed Forces, reported as missing in action, disappears under circumstances indicating they may have died, or amnesia, etc. A petition may be filed to appoint a Conservator to administer their estate until they are found or declared dead. See Florida Statute 747. Curatorship: Curatorships are used when the Court needs to appoint a Curator and issue Letters of Curatorship to take charge of the estate of a decedent until Letters of Administration are granted. See Florida Statute 733. Notice of Trust: Notice of Trust is to be filed with the Clerk upon the death of a settler of a trust. The Notice of Trust must contain the settler’s date of death, name of the settler, the title of the trust, if any, the date of the trust, and the name and address of the trustee. See Florida Statute 737. Trust: Trust cases in the Probate Department are usually opened to appoint a Successor Trustee on an existing trust or to dissolve an existing Trust. See Florida Statute 737. Guardianships: Guardianships are filed for both minors and incapacitated persons. An individual, through their attorney, files for a guardianship to be appointed for an adult person when they believe that person is not mentally capable of taking care of themselves. The Court approves a list of qualified people to evaluate the person and make their report to the Court. In some instances the adult person may be only physically unable to care for himself or herself and may need a guardian. Guardians can be appointed as Guardian of the person only, property only, or both person and property. Guardianships are also filed for minors when the minor child has inherited money or property in excess of $15,000.00 from a deceased relative, or received money from a settlement in excess of $15,000.00. In this case a guardian of the property is all that is needed if the minor child's parents are living. If a minor child's parents are deceased or unable to be appointed guardian, they may need a guardian of the person and property. Voluntary Guardians are filed when an adult person wants another person to handle their property. Guardianships may also be filed for individuals who are entitled to receive benefits from the United States Department of Veterans Affairs and who are governed by the Veterans Administration Guardianship Statutes Part VIII (Veterans Guardianship - F.S. 744.602). The Veterans Administration files their own certificate of incapacity, which eliminates the need to declare the ward incapacitated through the Mental Health Department. The Court monitors all Guardianship cases. See Florida Statute 744. Production of Wills: The will of the decedent must be deposited by the custodian with the Clerk's Office in the County where the decedent resided, within 10 days after receiving information of the death of the maker of the will. The custodian must provide the decedent's date of death or social security number to the Clerk when depositing the will. There is no fee to deposit the will with the Clerk's Office. See Florida Statute 732.901.