In Florida, after someone passes away there are legal procedures that must be followed in order to divide the assets that remain in the decedent’s estate. These procedures are part of a process referred to as probate administration, and they are overseen by the probate court. Probate is initiated by the filing of a petition with the probate court, which in Florida is the circuit court. Typically the person who files the petition is the person who has custody of the will, which is usually the person who is named in the will as the personal administrator. In the absence of the will, it is usually a family member. In fact, according to of Florida Statutes, section 733.202- Petition., any interested party has the right to file the petition to initiate probate. Regardless of who files the petition for probate, it is important that petition is completed correctly and filed in the proper place. If you have an interest in an estate of a decedent, contact a skilled Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates, who understands the legal requirements of administering an estate, including the requirements for filing a probate petition.
Opening a Probate ProceedingIn order to initiate probate, a petition must be filed in the proper circuit court which would be the court in the county in which the decedent resided at the time of his (or her) death, or I the county where the decedent owned property. If the decedent had a will, the will must be filed along with the petition. The petition must include a variety of information about the decedent including where he resided, the names and addresses of the his beneficiaries and heirs. The probate judge will review the petition, and if everything is in order, will open the probate proceeding. He will also review the petition related to the appointment of a personal administrator.
Objections to ProbateInterested parties such as beneficiaries, beneficiaries of a prior will, and heirs have the right to file an objection to the probate petition. The objection may be based on the will not being properly executed, the testator not having testamentary capacity, or allegations of fraud, duress, or undue influence. As an experienced probate lawyer in Fort Lauderdale will explain, any objection to probate must be backed up by evidence and not merely a belief that the will was executed under illegal circumstances. If the judge agrees with the objectant, then the will will not be probated. In that case the decedent’s estate will be distributed based on the rules of intestate succession.
The Personal RepresentativeThe personal representative can be an individual, but can also be a company such as a bank or a trust company. The personal representative is also called an executor, executrix, or estate administrator. An individual who wants to be appointed a personal representative must be a Florida resident or a close relative of the decedent. The person must also be at least 18 years, must not have been convicted of a felony, and must not be mentally or physically unable to perform the duties of the job.
If the decedent left a will and nominated someone in his will to serve as personal representative, if qualified, that court will appoint that person to serve as personal representative.
As an experienced probate attorney in Fort Lauderdale will explain, if the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the probate court judge to serve as personal representative. If the decedent was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the Florida Probate Code lists the order of priority as to who has the right to be appointed to serve as personal representative.
Duties of the Personal RepresentativeThe personal representative has a legal duty to administer the probate estate pursuant to Florida law. As a fiduciary, the personal representative must act for the benefit of the beneficiaries or heirs of the estate, and not for his (or her) own best interest.
When the probate court appoints someone to serve as personal representative, the court will issue that person a document called, “letters of administration” which serves as proof of the person’s authority to act on behalf of the estate
The duties of the person representative include the following:
Any interested person may petition for administration.
Contact the Law Offices of Stephen Bilkis & AssociatesWhile probate is often a relatively routine process, it can also be quite complicated, confusing, and long for the personal representative, beneficiaries, and others involved in the proceeding. Understanding probate can make things easier for those involved. An experienced probate attorney can help with the process. The attorneys at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing clients in matters related to settling estates, estate litigation, disputes with creditors, and understand the requirements of the Florida Probate Act, including Florida Statutes, section 733.202- Petition. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.