What is Needed to Bring a Probate Proceeding in Florida? A Step-by-Step Guide

If you are looking to pursue a probate in Florida, you likely have questions about where to start and what documents are legally required. Whether you are facing a Formal Probate or a Summary Probate, gathering the right information upfront is crucial to avoiding delays.

This guide breaks down exactly what is needed to open an estate in Florida, from necessary documents to identifying heirs.

1. Determine Which Type of Probate You Need

Before gathering documents, it helps to understand which proceeding applies to your situation. In Florida, there are generally two types of probate:

Formal Probate

A Formal Probate takes longer and is typically required when:

• 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.

• Unknown Values: If you are unsure of the value of bank accounts or other assets, a Formal Probate is usually necessary to determine if you qualify for a summary administration.

Summary Probate

A Summary Probate is a faster process that can be utilized if:

• Time Since Death: The decedent passed away more than 2 years ago (regardless of asset value).

• Asset Value: The decedent passed away less than 2 years ago, but the non-exempt assets are $75,000 or less.

Note on Exempt Assets: When calculating the $75,000 limit, you can exclude "exempt" property. This includes the Homestead property, up to two vehicles, and up to $20,000 in household items and furnishings.

2. The Essential Documents Required

To legally bring a probate action, you must provide specific proof to the court.

Proof of Death (Death Certificate)

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

• Standard Requirement: A death certificate is the most common and accepted document.

• Deaths Abroad: If the decedent was a Florida resident who passed away in another country, you must provide a comparable document issued by that country verifying the death.

The Last Will and Testament

If a Will exists, the court needs to verify its validity to ensure assets go to the correct beneficiaries.

• Originals vs. Copies: It is very helpful—and typically required—to record the original Last Will and Testament with the court. If you only have a copy, extra steps (such as hearings or testimony) are required.

• Witness Requirements: For a Will to be valid in Florida (even a handwritten one), it must be signed by the testator and two witnesses who were all in each other’s presence at the time of signing.

• Self-Proving Affidavit: This is a document signed by a notary confirming the Will was signed correctly. If your Will has this, it can be accepted "as is." Without it, you may have to track down witnesses to sign affidavits or provide testimony, which stalls the process.

3. Information on Assets and Debts

You need a clear picture of what the decedent owned and what they owed.

• Asset Values: You need to know the value of accounts (money markets, bank accounts, real property) to determine if you must file a Formal or Summary probate.

• Creditors: Information regarding debts is required to handle creditor claims.

• Homestead Protection: Creditors generally cannot make claims against Homestead Property or up to two vehicles. However, you still need to gather this information for the court, even if the creditors will not eventually get paid from those specific assets.

4. A Complete List of Heirs

One of the most common reasons probates are stalled is a lack of information regarding heirs.

• Who is an Heir? If there is no Will, assets pass according to Florida law. This can include biological children, legally adopted children, and legally adopted step-children.

• Complex Families: If it has been years since the passing, or the family tree is complicated, you may need to list aunts, uncles, nieces, nephews, or grandchildren.

• Estranged Relatives: You cannot leave an heir out just because they are estranged or "don't want anything to do with the estate." You must disclose their names and addresses.

• Heir Search: In complex cases, an "heir search" may be required to ensure no one is left out of the proceeding.

Summary Checklist

To streamline your consultation with an attorney, try to have the following ready:

[ ] The Death Certificate (or equivalent proof of death).

[ ] The Original Will (if one exists).

[ ] List of Assets (Bank accounts, real estate, vehicles).

[ ] List of Debts (Credit cards, loans).

[ ] Family Tree Info (Names/addresses of all potential heirs).

Need Help with Florida Probate? Probate can be complicated, especially when dealing with missing documents or complex family dynamics. If you are in Florida and need assistance, reach out to atCause Law Office - the "non-stuffy attorneys" for guidance on your specific situation.

Disclaimer: This information is for educational purposes only and does not constitute legal advice. Always consult with an attorney regarding your specific legal needs.