- 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 prohibited 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 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.
- For information regarding a specific case, call 386-313-4497 or email probate@flaglerclerk.com. The clerk may not give legal advice.