At ARC Law, we represent the personal representative or beneficiaries of an estate and guide them through the legal process of distributing your loved one’s property.

Probate Frequently Asked Questions

What is Probate?

Probate is the legal process, supervised by a court, of identifying and collecting the assets of a deceased person, paying their debts and distributing any remaining assets to their legal beneficiaries.

This person, typically called the Decedent, may have left a Last Will and Testament, Trust and/or other estate planning documents that will need to be submitted to the court to enforce the Decedent’s last wishes.

Does Florida Probate require an attorney?

It depends on the type of Probate. In Florida, there are two types of Probate: Summary Administration or Formal Administration.

Summary Administration does not require an attorney (but it is strongly advised that an attorney be consulted) and is only available if the estate’s non-exempt assets are less than $75,000.00 or if the Decedent passed away more than two (2) years ago.

Formal Administration requires that the Personal Representative hire an attorney for the Probate process. This type of Probate is required when the Decedent’s non-exempt assets are equal to or greater than $75,000.00.

The Personal Representative of the Estate, also known as the Executor/Executrix of the Estate, is chosen by the Decedent in their Last Will and Testament (or by the court if there is no will).

While Summary Administration does not require an attorney, it is always best practice to have an attorney represent you to avoid any mistakes or delays in the Probate process. This is especially important if there is any real estate property.

What are considered non-exempt assets for Probate?

Any financial accounts in the Decedent’s sole name with no designated beneficiaries. Think any bank or investment accounts, such as checking, savings, stocks, bonds, CDs, etc.

Any life insurance policies, annuity contracts or IRAs with no designated beneficiaries.

Any real estate property (except Homestead property), that is titled in the sole name of the Decedent or is jointly titled with the Decedent and others as tenants in common.​

Can Probate be avoided to pass ownership of assets?

The short answer: Yes, but only with proper estate planning tools in place.

The long answer: It depends, but the only assets that avoid Probate are exempt assets.

If the decedent did not have a will, they are considered to have died intestate, meaning without a will. Therefore the court will supervise and distribute the estate pursuant to the intestacy rules of the Florida Probate Code Chapter 732: Intestate Succession and Wills.

If the decedent did have a will, and thus died testate, meaning with a will, Probate is still necessary to finalize all financial matters of the Decedent, including payment or objection to any creditor claims and resolving any disputes between beneficiaries.

What are exempt assets?

These assets avoid probate and pass directly to beneficiaries, so no lawyers or courts are necessary. Financial institutions holding any accounts or insurances will have their own policies and procedures for handling distributions to beneficiaries. Some exempt assets include:

• Decedent’s Homestead property (if any);

• financial accounts, retirement accounts, or life insurance policies with designated beneficiaries;

• assets properly placed in a valid Trust;

• any real estate property co-owned with the Decedent with rights of survivorship;

• any financial accounts co-owned with the Decedent; and

• any real estate property that passes to a beneficiary via Life Estate Deed or Enhanced Life Estate Deed

Where does Probate happen?

Typically the Probate administration will take place in the county where the Decedent lived at the time of death.

The proper jurisdiction for Probate for a Decedent who was an out-of-state resident that owned property in Florida is typically in the county where the property is located.

How fast is the Probate process?

Unfortunately it is SLOW. There are no guarantees for any specific cases, but generally Probate cases fall within the time ranges below:

Formal Probate Administration will typically take between 6-12 months, depending on the size of the estate and number of interested parties.

However, with unforeseen complications (e.g. contested creditors, uncooperative beneficiaries, mismanagement of estate funds by the Personal Representative), some Probates can take much longer to finish due to the additional work and/or litigation.

Summary Probate Administration is a little quicker, normally taking between 2-4 months (unless real estate property is involved, in which case it may be a few additional months).