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Probate and Trust Administration

Probate is the court-supervised transfer of assets to a descendant's heirs and beneficiaries after payment of creditors.

The first step in the probate process is to file the original will with the probate court. Florida law requires the person who has possession of the will to file the original will with the probate court within ten (10) days of the decedent’s death. Once a court has determined that the will filed is the latest version of a decedent’s last will and testament and that it has been executed with the formalities required by Florida law, the will has been admitted to probate. After a will has been filed with the probate court, the next step is to obtain Letters of Administration for the Personal Representative.

Typically, a decedent will have nominated an individual to serve as the Personal Representative of their estate in his or her will. A Personal Representative is usually a family member or close friend chosen by the decedent to perform the duties of winding up a person’s affairs through the probate process. A Personal Representative is synonymous with the term executor, which is more commonly used in the northern states. A Personal Representative is entitled to be compensated for the performance of their duties and is also a fiduciary to the beneficiaries of the estate and therefore has a legal duty of care to the beneficiaries to oversee and safeguard the assets.

After a will has been filed with the probate court, the next step is to obtain Letters of Administration which allows the individual nominated as the Personal Representative under the will to marshal the assets of the decedent, notify beneficiaries and creditors of the probate of the estate, value the assets of the decedent, pay out any valid creditors’ claims during the three month creditors’ claims period, file an accounting of the inflow and outflow of the assets into the estate and then distribute the remaining assets in accordance with the decedent’s will.
Also, if a non-Florida resident owned property in Florida at the time of their death, Florida law requires a probate proceeding to be commenced in Florida to transfer the decedent’s interest in the property onto their heirs. This is called an ancillary probate and is conducted at the same time as the probate action in the decedent’s state of residence at the time of his or her death.

Probate is a costly and time-consuming process, which in most cases can be avoided with proper estate planning. If you have assets, have children, have married for a second time or more, it is wise to spend time to setting up a proper estate plan which can avoid creditors claims.

However, if you are responsible for probating of an individual’s estate, your lawyer will need the following items and you can fill out and complete the probate intake form:

  1. The decedent’s original will;

  2. At least two death certificates;

  3. Copies of bank statements for the month of the decedent’s death;

  4. Copies of brokerage statements for the month of the decedent’s death;

  5. Copies of any stock or bond certificates that the decedent may have held outside of a brokerage account;

  6. Copies of any general or limited partnership certificates or agreements;

  7. Copies of mutual fund accounts;

  8. Copies of deeds to real property, wherever located;

  9. Copies of mortgages, related promissory notes and related amortization schedules;

  10. Copies of all retirement, pension and/or annuity plans and related account information;

  11. Life insurance policies;

  12. Past three (3) years’ individual tax returns;

  13. Past three (3) years’ Florida Intangible Tax Returns, if any;

  14. Copies of certificates of title for any automobiles the decedent owned;

  15. List of all personal property the decedent owned including the estimated value;

  16. List of collectibles valued in excess of $3,000 and any insurance riders;

  17. Safe deposit box number(s), location and inventory of same;

  18. Contact information for the decedent’s accountant and financial advisor;

  19. List of all pending lawsuits, if any, whether the decedent is the plaintiff or defendant;

  20. Any other evidence of assets the decedent owned not otherwise noted above.

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