How do you know if Probate is necessary?


Dealing with a loved one passing away is really difficult but having to be the one to go through and distribute or dispose of their possessions only makes the grieving process harder because you were named as the personal representative.

Before you go running off to sell their items on eBay or handing over the keys to their car to your daughter you must make sure you are following the law. You have to be sure that probate is not necessary and confirm that the descendent had proper estate planning to avoid the Florida probate process.

If a person died owning real estate, chances are probate is going to be necessary. Also, if a person died and failed to name beneficiaries on their bank accounts, probate will likely be necessary. If you choose to avoid this legal procedure, or try to find ways around it, you may find yourself being sued by a beneficiary who did not receive what they thought was theirs in the first place. And now…you are in trouble with the law, your family, and potentially your bank account.


PROBATE 101: What is Florida probate?

According to the Florida Bar, “Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.”

Of course, this definition makes it sound a bit easier and not as complex as it might really be, but in practice it can be much more difficult and overwhelming. However, many people believe they can tackle this process on their own when they really should not.

Know When to Stop

In the state of Florida, regardless of if probate is necessary or not, if you are in possession of a Last Will and Testatement, you must file it with your local court within 10 days of learning of the death. The court will determine if the will is valid and appoint you as the personal representative. But until that moment, if you have officially not been appointed as the personal representative it is against the law to do anything with those the assets, or possessions.  If you do not file it with the court or hold off on filing, you might run the risk of penalties or even run the risk of being sued by those beneficiaries who were in line to receive assets.

How Do You Know When Florida Probate Is Necessary?

  1. If there is no will.
    • If a Florida resident passes away without having made a will, the intestacy succession laws will dictate who inherits the assets of the person who has passed away.
      • If the person who has passed away is survived by a spouse, the surviving spouse will inherit 100% of the person’s estate.
      • If the person who has passed away is survived by a spouse, but some of the descendants are not from the surviving spouse the surviving spouse and the descendants would equally split the value of the estate.  
      • If the person who has passed away is survived by a spouse and has no descendants, the spouse will inherit 100% of the estate.
      • If the person who has passed away is survived by only descendants and no spouse, the descendants will inherit 100% of the estate.

Though sometimes, probate may not always be necessary even if there is no will. It really depends on the types of assets and how they are owned. If the person owned real estate and it was only in their name, chances are that probate will be necessary. Similarly, if they have bank accounts or insurance policies that failed to name a beneficiary (or the beneficiary has died), then probate will be necessary to get access those funds. Depending on the situation, you may also have to do probate to get a car in your name. All and all, it is really about how the assets were owned by the person who died. 

  1. DIY Documents          
    • With so much information out there, must of us believe we can do anything. For example, just because you can change the engine in your car, does not mean that you should. If your loved one thought they could fill out their own will, there’s probably a possibility that something is wrong in the document. There are a number of possibilities that could trigger a Florida probate in a will. For example, it might not be witnessed or the signatures might be done in the wrong place. Or maybe it is a handwritten will, which for the most part, are not valid in the state of Florida.

Also, there’s a possibility that the beneficiaries could contest the will so you need to make sure that the will meets Florida standards and proper steps have been taken.

  1. No beneficiaries

When there are no heirs or beneficiaries, it becomes much more difficult. The personal representative may be required to attempt to locate long lost family members, which could include hiring private investigators. This can add greatly to the cost of the Florida probate and create a headache for the person in charge of administering the estate.

As you can see, the probate process and Florida law can be quite complex and overwhelming. We highly advise speaking to a knowledgeable probate attorney who can guide you through the process to ensure you’re doing everything correctly the first time around and preventing from worse scenarios becoming a reality.

If you would like to speak with a member of our team to discuss how we can help you through the Florida probate process, please call us at 305-456-3255 or fill out the Contact Us page and we will contact you right away. And for those who would like to do more research – we have you covered! Download our free guide today titled: “A Love One Has Died – Now What?” to learn more about the Florida probate process.

Thank you for your interest in Stivers Law and we look forward to speaking with you soon.

As a reminder, the information provided on this blog article is only to be used for general informational purposes and not intended to be used as legal advice.  

Author Bio

Justin Stivers is the founder and managing attorney of Stivers Law, an estate planning firm specializing in wills, probate, trust administration, and financial risk management services. Justin’s approach goes beyond just creating legal documents. From aligning investments with estate plans to ensuring comprehensive insurance coverage, he safeguards a client’s legacy from unforeseen circumstances. His commitment extends beyond individual transactions, fostering lifelong partnerships to provide ongoing support and guidance.

With an impressive track record, Justin is licensed by the Florida and the Tennessee State Bars. His professional portfolio boasts Series 65 registration as a Registered Investment Advisor, the Wealth Management Specialist™ designation, and a 2-15 License for Health, Life, and Annuities. His dedication to excellence has earned him positions like Board Member of the Estate Planning Council of Greater Miami, Business Eagle Member of the Florida Justice Association, and active membership in esteemed organizations like the American Academy of Estate Planning Attorneys.

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