What is Probate?

Probate is simply the name for the legal process of passing on a person’s property and assets to others (family, friends, charities, e.g.) after that person has died.

When someone close to you has died, it can be a time of great stress, uncertainty and sorrow.  Since the Probate process in Florida requires an appointed personal representative/executor to be represented by an attorney, you don’t have to worry about going it alone.  A capable attorney will be able to guide you through the process with care and compassion and you’ll have the support you need to help you through a difficult time.

Frequently Asked Questions

Q: If a family member has died, can I just handle this Probate process on my own?
A: No.  If the person died owning property or assets in his or her name only, in order to determine who will get the property or assets, by law, someone must hire a lawyer to handle the process of transferring the property from the deceased person’s estate to the beneficiaries. 

Q: What if a person dies without having written a Will, is Probate still necessary?
A: Yes, unless that person died with a Trust or owning nothing in their own name, Probate will still be required; and with no Will, the process could become more complicated and expensive.

Q: If someone has a Living Trust, no Probate is needed then, right?
A: That depends.  That person may have a trust but also have a home/homestead.  In order to pass that homestead along to family members with special legal protections in place, a short, usually simple special kind of Probate process is required.  If there is no homestead ownership involved, then it’s true that Probate may be avoided.  There could still be Probate court proceedings required though if someone wanted to challenge the provisions in the Trust. 

Q: I’ve heard Probate takes forever.  Isn’t that enough reason to avoid it if possible?
A: Well, all Probates are not created equal.  Some are pretty quick while others are complicated and longer.  Some reasons for a longer Probate could be: someone is “contesting” (unhappy with and arguing about) the provisions in the Will; the Will might have been unclear about who was to get what and sorting that out could take some time; if a person dies with no Will, it could take some time to identify, locate and notify all possible heirs. 

Q: If one attorney prepared my family member’s Will, but I have an attorney that I have worked with before and like, do I have to go back to the attorney who drew up the Will to go through Probate?
A: Not at all.  Many persons who are named as the Executor or Personal Representative in a Will think they have to go back to the attorney who wrote it, but, in fact, the Personal Representative is free to go to any qualified attorney he or she chooses. 

Q: How much will it cost to Probate an Estate?
A: Most attorneys charge a minimum fee for Probating an estate –even a small one-and utilize hourly rates to keep track of their time. For larger estates, fees of about 3% of the estate assets are considered reasonable by Florida statute.  There is also a one-time court filing fee required in order to begin the Probate as well as a few other costs.  You should know, however, that even if a person died leaving no homestead and everything else in a Living Trust, attorney services may be required to assist the Trustee with administering the Trust properly so the Trustee does not encounter any legal problems in the future.

Q: If I have been named or appointed Personal Representative/Executor of someone’s Estate, am I entitled to be paid?
A: Yes, you may receive compensation for your work as Personal Representative if you wish. 

Q: My father’s Will named me as Personal Representative but when I took the Will to the bank to get some money out of his account for his funeral, the bank wouldn’t allow it.  What gives?
A: The bank was just following the law.  Even though the Will says you are to be the Personal Representative/Executor, you must first get a Court Order from a Probate Judge appointing you to that position.  This is part of the Probate process. 

Q: I was named as my mother’s Agent under her Durable Power of Attorney and after Mom died I couldn’t get a bank or insurance company to talk to me about her affairs even though I showed them the Durable Power of Attorney.  Why did they do that?
A: A Durable Power of Attorney is good only as long as the person who signed it is living.  Once that person has died the document is of no use.  The people you spoke with could have gotten into big trouble (and you, as well) if they accepted the Power of Attorney after your mom’s death and gave you access to her accounts. 

More questions about Probate?  Call us toll free at 1-877-891-6610.  We have offices in Hillsborough and Pinellas Counties.

Probate Terminology

Estate – The Estate is all that a person owned at his or her death (real estate, personal property, cash etc.)
Testate – If a person dies Testate that means they had a written Will.  If they had no Will, then they are said to have died Intestate.
Personal Representative – Personal Representative is the term used in Florida but in other states the term is Executor or Executrix.  This person is in charge of administering the estate.
Letters of Administration – This is a document issued and signed by the Court that authorizes a person to carry out the business of the decedent’s estate.  This document is needed when a bank account for the estate must be opened as part of other estate transactions required to be performed by the Personal Representative.
Accounting – Accounting is the process where the Personal Representative reports to the decedent’s beneficiaries exactly what assets were in the decedent’s estate when he or she died and what has happened to them since.