People frequently ask whether they are entitled to be notified that estate administration or probate is under way. So who is entitled to notice of probate in Florida?
Are You A Beneficiary of The Florida Estate?
In most circumstances, entitlement to notice of probate is typically going to be determined by one’s status as a beneficiary of the estate.
Thus, the threshold question becomes: Am I a beneficiary? In testate estates, where administration is taking place under the terms of a will, the will itself is going to identity who the beneficiaries are. In intestate estates, where no will has been admitted to probate by the court, Florida law calls upon us to apply certain default rules to determine the identity and interests of beneficiaries because there is no will which independently provides this information.
Generally speaking, the universe of potential beneficiaries in testate estates is limited only by the testator’s imagination, as the individual making a will can leave property to whomever he or she chooses.
In an intestate estate, only certain members of the decedent’s family, known as heirs, can be potential beneficiaries. See Fla. Stat. §§ 732.102; 733.103. The distinction between heirs and beneficiaries is fundamentally important, as it is beneficiaries who are always entitled to notice of probate in Florida, not heirs. It is this wrinkle in our law which often gives rise to confusion and chaos.
A Notice of Administration Must Be Served Upon Beneficiaries And The Surviving Spouse
Florida law sets forth that, upon appointment, a personal representative shall promptly file the Notice of Administration. Fla. Stat. § 733.212 and Fla. Prob. R. 5.240 govern the contents of a Notice of Administration document and the identity of those parties entitled to a copy of the Notice. Importantly, these rules require that the Notice be served upon beneficiaries. There is no requirement that heirs (other than a surviving spouse) receive notice.
The product of this statutory scheme is that there are many testate estates where family members do not receive notice because the beneficiaries of the decedent’s will are not heirs. This aspect of Florida law, wherein notice of probate is not necessarily owed to heirs, is unlike that of many other states. For instance, in New York, both heirs and beneficiaries are entitled to notice that probate of a testate estate has commenced. See N.Y. CLS SCPA § 1403 (requiring service on distributees and beneficiaries in proceedings to probate a will).
What Is the Distinction Between Heirs and Beneficiaries Under Florida Law?
It is fundamentally important to understand the distinction between heirs and beneficiaries, as the terms are not necessarily synonymous. In a Florida probate, heirs (other than a surviving spouse) are not necessarily entitled to notice of administration, because heirs might not be beneficiaries of the estate. Learn who are considered heirs under Florida law here.
Fortunately, safeguards are available for individuals who suspect that administration may have commenced or is likely to commence without notice. For one, information regarding probate proceedings is disseminated online by the Circuit Courts of most Florida counties. Individuals wishing to take an even more proactive approach can file a caveat, discussed here, which triggers a compulsory response regarding the status of probate in most instances. See Fla. Stat. § 731.110.
There are numerous statutes in the Florida Probate Code delineating deadlines to act, many of which expire irrespective of whether notice is given. Download the Florida Probate Deadlines and Timelines chart for more information. Accordingly, an understanding that probate may begin without notice is an important first step in ensuring that your rights remain capable of protection and enforcement.