Here are the basic steps for how to probate a will in Florida:
- Locate the Original Will. Under Florida law, the original of the will needs to be probated. If the original cannot be located, it is presumed destroyed with the intent to revoke the will. Under Florida statute 732.901, the original will is supposed to be deposited with the clerk of court where the deceased resided within 10 days of receiving information that the testator is dead. If the original will cannot be located, but the presumption of revocation is overcome, testimony of at least one disinterested witness will be required to admit the will to probate if a copy can be located, under Florida statute 733.207. If a copy cannot be located, the testimony of two disinterested witnesses is required.
- Give Required Notices to Beneficiaries, Surviving Spouses, and Creditors. Florida law requires that a Notice of Administration be provided to beneficiaries named in the will, as well as surviving spouses. The Notice of Administration provides important information, such as the deadline for challenging the validity of a will, and alerts the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowance. Known creditors must be given a Notice to Creditors, stating that the creditor has 90 days within which to file a creditor claim in the estate. Notice to Creditors must also be published in the local newspaper, alerting such creditors of the deadline for filing creditor claims.
- Marshall Assets, Preserve and Protect. Once the estate has been opened and letters of administration issued to the personal representative, the personal representative should take custody of the assets of the deceased that are properly part of the probate estate. For bank accounts, brokerage accounts, annuities, and insurance payable to the probate estate, the personal representative should retitle such accounts into the name of the estate and/or move such accounts into new accounts in the name of he estate. Normally, positions in stocks would be turned into cash (or reduced) so as to avoid any losses on estate assets. Real estate would be insured, secured, and listed for sale (or distributed to the beneficiaries). Homestead property of the deceased is not normally considered an estate asset so is handled differently. During this process, normally at the beginning, an estate inventory is filed with the probate court and sent to all of the beneficiaries.
- Creditors, Taxes, Disputes and Other Messy Stuff. These are the things that cause estate to be tied up for years and consume large amounts of money. Creditor lawsuits can go on for years. If the estate is subject to the estate tax, it will require a minimum of two years to close the estate, usually longer. If someone challenges the validity of the will, that process could take years as well and be very expensive. If the estate must deal with real estate, business interests, patents, art, or a wrongful death claim, such could tie up the estate for years. Some estates have all of these issues and more. If the estate has none of these issues, the estate should be able to be closed in under one year, sometimes even faster.
- Distribution to the Beneficiaries. The personal representative makes distribution to the beneficiaries after all of the difficult and messy issues are resolved. The personal representative might make interim distributions during the administration of the estate, or might wait and only make final distribution to the beneficiaries. For the final distribution, the personal representative can issue a plan of distribution and final accounting to the beneficiaries, to which they can object. In estates with good harmony, the personal representative might only issue an informal accounting and informal plan of distribution, to which they could agree with by signing a waiver or similar document.
- Discharge and Accounting. The personal representative, at the conclusion of the estate administration, will file a final accounting, plan of distribution, and petition for discharge with the probate court. If the accounting and plan of distribution was waived by the beneficiaries, those documents would not be filed. The clerk’s office at the probate court will review the petition for discharge to ensure that all requirements of a proper probate administration have been complied with, such as filing the inventory, paying (or successfully disputing)all creditor claims, and filing either the final accounting and plan of distribution (or waivers signed by the beneficiaries for such documents).