Probate Court

Probate

What is a probate?

Probate is a legal process through which the assets of a deceased person are properly distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are paid and proper distribution is made.

Where is the proper place to probate an estate?

The venue of Probate of all wills and granting letters shall be in the state where the decedent was domiciled. (F.S. 733.101)

When is a probate needed?

Probate is necessary when a court order is required to transfer or distribute the assets of the estate. Probate is not needed if all assets were jointly held and one of the joint holders is the survivor. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will. Pursuant to 5.030 Probate Rules of Court, every guardian and every personal representative, unless personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. The Clerk’s Office is prohibiting from giving legal advice.

What is a will?

A will is a document which, among other things, indicates how a person wants his or her property to be distributed after death. The will generally recommends a personal representative to administer the estate. A will does not, however, transfer the title to real property.

Does a will increase probate expenses?

No. If there is property to be administered or taxes to be paid, or both, the existence of a will does not increase probate expenses. In either case, the probate judge will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute.

How are Probate proceedings initiated?

Probate proceedings are initiated with the filing of a Petition by the person asking to be appointed personal representative. The Petition is usually prepared by an attorney. The appointed representative will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.

When and where should a will be deposited?

After the death of the person, the custodian of the will must file the original will and a certified copy of the death certificate with the Clerk of the Court in the county in which the decedent was a legal resident. This must be done within ten days after receiving information that the person is deceased. F.S.732.901

What does “probating a will” mean?

"Probating a will" means taking all the legal steps necessary to assure a will is valid and to admit the will to a probate process. The clerk assigns a file number and maintains a docket sheet which lists all papers filed with the Clerk for the administration of that probate.

What are probate assets?

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death.

Who presides over probate proceedings?

A Circuit Court Judge. The judge appoints the personal representative, issues "letters of administration", holds hearings when necessary, and resolves all questions raised during the administration of the estate.

What are the different types of proceedings?

Generally, there are three basic proceedings for administering an estate.

Formal Administration: Used when there are considerable assets and it is necessary to have a personal representative appointed to act on behalf of the estate.

Summary Administration: Available if the value of the estate, subject to probate in the State of Florida (less property which is exempt from the claims of creditors), is not more than $75,000, or the decedent has been dead more than two years.

Disposition without Administration: Available if the estate assets consist solely of exempt property and non-exempt personal property (such as life insurance policies, stock, bank accounts), where the combined value does not exceed the total required to pay the funeral expenses, plus all reasonable and necessary medical and hospital expenses incurred in the last 60 days. (No real estate)

What must accompany the form for filing a disposition of personal property without administration?

The will, if the decedent had one.
A certified copy of the death certificate.
A copy of the funeral bill, indicating if it has been paid and who paid it.
A statement regarding the type of assets to be released and the company or institution currently in possession of the assets.
A photo ID of the person filing the paperwork.
Filing fee and additional fee for certified copies, if approved by the judge. The current fees can be obtained by calling the Probate Division of the Clerk's Office.

If I have a claim on a decedent’s estate, how do I collect?

You should file a statement of claim form in duplicate within three months from the first publication of the notice of administration. There is no fee for filing a claim.

What happens if a person dies and has left no will?

The property will be distributed in accordance with the provisions of   Sections 732.101 and 732.106, Florida Statutes.

What is a living will and is it deposited with the Clerk?

A living will is a document in which an individual states what medical
measures he wants taken or withheld in the event of terminal illness or
permanent unconsciousness. This document is not deposited with the Clerk’s Office. See Florida Statutes Chapter 765 Part III (Section 765.301, etc.)

How do I find out if a probate case has been opened in Flagler County?

You may come to our office on the second floor of the Kim C. Hammond Justice Center to conduct a search on our computer system (or in the Archive books located in Official Records); or send in a written request providing the decedent's full name and date of death, along with a self-addressed, stamped envelope and a payment of $2.00 per year for the search fee.

What if I have a claim against or I am a potential beneficiary of an estate that has not been probated yet and I want to be notified when a probate is opened?

You can file a Caveat, for which there is a filing fee of $41. When a probate is opened for that estate, you will be notified and provided the name and address of the petitioner/personal representative and of his or her attorney.

Where can I find further information?

The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

 

Guardianship

What is a guardianship?

A guardianship is a legal proceeding in the circuit court in which a guardian exercises the legal rights of a minor or incapacitated person. Guardianships are established for various reasons: An adult who lacks the ability to care for himself/herself; a minor who has received an inheritance or personal injury settlement; or a minor who is living with relatives who need to make decisions about the minor’s schooling and health care.

When is a guardianship appropriate?

A guardianship may be appropriate for an adult who is not capable of taking care of his or her financial affairs and/or personal well-being. A person may select a guardian prior to having a need for one by completing a Declaration of Pre-Need Guardian. An attorney normally assists in preparing this form. Guardianship cases are generally established when:

Someone is declared incompetent or incapacitated.

A guardianship is required for a minor who is the recipient of a court settlement over $15,000.

A minor has inherited money or real property.

There is a need by a parent to have a guardian appointed because the parent is not going to be available for a period of time, such as a mother going into the military.

What is a guardian?

A Guardian is an individual or institution appointed by the court to care for an person called a "ward" or for the ward's assets.

Who may serve as a guardian?

Any adult resident of Florida can serve as a guardian. A relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony cannot be appointed.
Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian.
The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.

What does a guardian do?

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present a detailed plan for the ward’s care every year.

Is a guardian accountable?

Yes. Guardians must be represented by an attorney who will serve as "attorney of record." Guardians may be required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

Is a guardianship permanent?

Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, or a minor reaches the age of 18, the court will have the ward reexamined and can restore some or all the person’s rights.

How is a person determined to be incapacitated?

A qualifying adult may file a petition with the court to determine another person’s incapacity by setting forth factual information upon which they base the belief that the person is incapacitated. The court then appoints a committee of three professionals to examine the alleged incapacitated person and report their findings to the court.
The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition.
If the examining committee finds the person to be incapable of exercising certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing if the court rules incapacity.

Where can I find more information?

Chapter 744, Florida Statutes.
For information regarding a specific case, call 386-313-4486 or email probate@flaglerclerk.com
The clerk may not give legal advice.

 

Mental Health

Protective Services – for aged or disabled persons in need of Protective Services

The Marchman Act was established to provide involuntary treatment for substances abuse (whether illegal drugs, prescription drugs or alcohol.) F.S. 397.

The Baker Act is used in cases where the person has a mental illness and meets all remaining criteria for voluntary or involuntary admission. F.S. 394.

To file a Baker Act or Marchman Act, go to the Courts Division located on the second floor of the Kim C. Hammond Justice Center, 1769 E. Moody Blvd., Bldg 1, Bunnell, FL 32110. Our office hours are Monday - Friday, 8:30 a.m. to 4:30 p.m. We can be contacted by telephone at 386-313-4486 or email probate@flaglerclerk.com

What is the fee for filing a Baker or Marchman petition?

There is no fee for filing a petition.

Who can sign a petition involving a juvenile?

Natural parent
Legal guardian
Legal custodian

Can an adult apply for voluntary admission?

Yes, an adult may apply for voluntary admission if found to show evidence of mental illness, to be competent to provide express and informed consent, and to be suitable for treatment. An individual can only apply for voluntary treatment at the treatment facility.

Marchman Act petitions that may be filed

A Petition for Involuntary Assessment and Stabilization
or
A Petition for Involuntary Treatment

When are petitions filed?
Marchman Act:

When there is reason to believe that a person is substance abuse impaired and:

Because of the impairment, he or she has lost the power of self control with respect to substance use.
The person’s judgment is impaired because of substance abuse and he/she is incapable of appreciating the need for, and is unable to make a rational decision in regards to, substance abuse services.

Baker Act:

When there is reason to believe that a person has inflicted, attempted or threatened to inflict, or unless admitted, is likely to inflict, physical harm on himself/herself or another.

Who may file a petition?

The person’s spouse or guardian, any relative of the person, a director of a licensed service provider, a private practitioner, or any three adults who have personal knowledge of the person’s substance abuse impairment.
In the case of a minor, only the parents, legal guardian/custodian or licensed service provider can file a petition.
You will need to provide proper identification and have personally witnessed the individual's actions.
A petitioner is sworn in at the Clerk’s Office as to the facts represented in the petition. (Any false statements may lead to perjury charges.)
The petition must be filed in the county where the person resides.

Where and when are petitions filed?

Monday through Friday from 8:30 a.m. to 4:30 p.m. at this location:
The Kim C. Hammond Justice Center
1769 E. Moody Blvd., Bldg 1
Bunnell, FL 32110
Second floor, Courts Division

How are voluntary and involuntary Baker Act admissions different?

A voluntary Baker Act admission occurs when a person 18 years of age or older, or a parent of a minor, applies for admission to a facility for observation, diagnosis, and treatment (this happens directly at a Mental Health facility).
An involuntary Baker Act admission occurs upon a finding by a court that (1) a person is mentally ill and, because of the mental illness, he/she has refused voluntary placement for treatment or is unable to determine whether placement is necessary; (2) he/she is incapable of living alone or with help, and without treatment is likely to suffer from neglect or refuse to care for him/herself, or there is a substantial likelihood in the near future that he/she will inflict serious bodily harm on him/herself/others as evidenced by recent behavior; and (3) all less restrictive treatment alternatives are not appropriate.           

What happens when an aged or disabled person lacks the capacity to consent to protective services?

The Adult Protective Services Act provides that if the Department of Children and Families determines that an aged or disabled person is being abused, neglected or exploited and is in need of protective services, but lacks the capacity to consent to protective services, the department shall petition the court for an order authorizing the provision of protective services. To initiate this proceeding contact the DEPARTMENT OF CHILDREN AND FAMILIES at 210 North Palmetto Avenue, Suite 412, Daytona Beach, FL 32114 (386) 238-4765 or 1340 S. Woodland Blvd., DeLand, FL (386) 736-5511.

Where can I find further information?

Florida’s Baker Act Law is located in Chapter 394 of the Florida Statutes
Chapter 397 of the Florida Statutes is known as the “Hal S. Marchman Alcohol and Other Drug Services Act of 1993”. It provides for the involuntary or voluntary assessment and stabilization of a person allegedly abusing substances like drugs or alcohol, and provides for treatment of substance abuse. 

HOTLINE for abuse, neglected or exploitation of a disabled adult or aged person contact 1-800-962 2873.