How does the Probate Process Work?

Probate involves the process of identifying everything that makes up a person’s estate, settling the person’s debts and distributing the estate. Usually, the probate process is undertaken by an executor or an administrator.

If the person leaves a will, the process will be started and overseen by an executor. After settlement of the person’s debts, the remaining assets are distributed according to the wishes in the person’s will. The executor is usually identified in the will.

If no will was left, the assets will be distributed according to the administration laws of Florida. In this instance, an administrator will be in charge of the process. Both the executor and administrator are called the personal representatives of the deceased’s estate.

Starting the probate process

The personal representative of the estate has the duty to start the probate process. They would usually do this by notifying the court of the need to open and administer the estate. There are two things that are very important in starting the probate process.

First, the personal representative of the estate should begin to assess the nature, size and debts of the estate. This is important as everything that makes up the estate must be accounted for.

Second, the personal representative should hire a Florida Probate attorney. This is because Florida law requires a personal representative to hire an attorney. However, there would be no need for this if the personal representative is an admitted Florida attorney. There would also be no need if the personal representative is the only interested party in the estate.

Opening the estate

This is the beginning of the actual process of settling the debts and distributing the assets of the estate. A lot of paperwork must be filed by the personal representative in order to open the estate.

The procedure that must be followed in opening the estate includes:

• Filing a petition to open the estate with the court
• Filing proof of the death of the deceased
• Filing an oath of office
• Providing of a bond by the personal representative. This requirement may be waived though.
• Serving of notice about the opening of the estate to every person that may be interested in the estate. Interested persons can include family members, trustees and creditors.

If any creditors or interested parties take issue with the opening of the estate, they may file an objection. This objection will have to be settled by the court first before proceeding with administration or execution of the estate.

Closing the estate

Once all issues have been resolved, all debts paid and all assets accounted for and readied for distribution, estate administration is complete. All that remains is for the personal representative to file a petition to close the estate.

Once this petition is granted, the assets will be distributed amongst interested parties. In order to avoid future litigation in respect of the estate, the attorney may prepare “waiver and consent” forms for all interested parties to sign.

If the parties refuse to sign, the personal representative must prepare a formal accounting of every action taken in respect of the estate. This provides a clear record of how the assets were distributed.

The court will approve the accounting, discharge the personal representative and close the estate.