Florida Probate Guide: Requirements, Documents, and How to Start

Are you looking to open a probate proceeding in Florida but aren't sure where to begin? We frequently receive calls from individuals unsure if they need a formal probate, a summary probate, or what documents are actually required to get started.

This guide clarifies the specific requirements for bringing a probate action in Florida, breaking down the differences in proceedings, asset exemptions, and the critical documentation you need.

1. Formal Probate vs. Summary Probate: Which Do You Need?

In Florida, the type of probate you file largely depends on the value of the assets and the time that has passed since the decedent's death.

When is Formal Probate Required?

Formal probate is the standard procedure and typically takes longer. You generally must file for formal probate if:

• Asset Value: The assets are valued at greater than $75,000 (excluding exempt assets).

• Time Since Death: The decedent passed away less than 2 years ago.

When Can You Use Summary Probate?

Summary probate is a simplified process. You may be eligible for this if:

• Time Since Death: The decedent passed away more than 2 years ago (specifically, at least two years and a day).

• Asset Value: The value of the assets (excluding exempt property) is $75,000 or less, even if the death occurred less than two years ago.

> Note: There are other considerations where a formal administration might be required regardless of these thresholds, so it is always best to consult with an attorney.

2. Understanding "Exempt" Assets

When calculating asset value to see if you cross the $75,000 threshold, you do not count exempt assets. These assets are generally protected from creditor claims.

Common Exempt Assets in Florida:

• Homestead Property: The primary residence is protected from creditors (and attorney fees).

• Vehicles: Up to two vehicles owned by the decedent.

• Household Items: Up to $20,000 in household furnishings and items.

If the only assets in the estate are Homestead property and exempt vehicles, creditors typically cannot get paid from these specific assets. However, listing debts is still necessary during the process (see Section 4).

3. Checklist: Documents Needed to Start Probate

We often receive inquiries from clients who want to start probate but lack the necessary documentation. To avoid delays, ensure you have the following:

A. Proof of Death

You cannot bring a probate action without legal proof that the person has passed away.

• Death Certificate: This is the standard requirement.

• Foreign Documentation: If the person was a Florida resident who died in another country, you must provide a comparable document from that country verifying the death.

B. The Last Will and Testament

If a Will exists, the original document is preferred and typically must be recorded with the court.

Is the Will Valid? For a Will to be valid in Florida (even a handwritten one), it must meet strict signing requirements:

1. Signed by the Testator (the person creating the Will).

2. Signed by two witnesses.

3. Crucial Rule: The Testator and both witnesses must all be in each other's presence when signing.

The Importance of the Self-Proving Affidavit A "self-proving affidavit" is a document signed by a notary confirming that the Will was signed in their presence along with the witnesses.

• With the Affidavit: The court can often accept the Will "as is."

• Without the Affidavit: The Will is not necessarily invalid, but it requires extra steps. You may need to track down witnesses to sign new affidavits or hold a hearing to provide testimony, which stalls the process.

4. Assets and Debts

To determine the correct type of probate, you need a clear picture of the estate's finances.

• Asset Valuation: You generally need to know the value of bank accounts, money markets, and non-Homestead real estate. If the value is unknown, you will likely be forced into a Formal probate because you cannot prove you qualify for Summary administration.

• Creditor Information: Gather information on all debts owed. While creditors cannot claim against Homestead property, they must be addressed for other assets.

5. Handling Heirs and Family Trees

If there is no Will, the law determines who inherits the assets. This can become complicated.

• Identify All Heirs: You must provide names and addresses for all potential heirs under the law.

• Include Everyone: This includes biological children, legally adopted children, and even relatives the decedent was estranged from. Just because a relative "doesn't want anything to do with the estate" does not mean they can be ignored; they must be named.

• Complex Family Trees: If many years have passed, you may need to list aunts, uncles, nieces, nephews, or grandchildren. In complex cases, an heir search may be required before the case can proceed.

• Post-Death Heirs: If an heir passed away after the decedent, the property may technically pass to them, requiring a separate probate for their estate.

Need Help with Florida Probate?

Probate laws can be complex, especially when dealing with missing original Wills or complicated heir searches. If you are in Florida and need assistance with your Probate don't hesitate to reach out. We are experts with remote cases and have been since, 2020!

Get Help in the Clearwater Area

If you are in the Clearwater area, please don't hesitate to contact us or visit our firm. We are ready to assist you locally and in-person as well. Schedule a Free consultation with us today.