What is probate?

As I take down my website, I thought I would post some general information that may be of interest.

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In case of the death of a loved one, it may be necessary to file a probate case with the court. It is possible that all of the assets owned by the person who died are titled in a way so that no probate is necessary. A probate is a court case that must be filed when it is needed to permit the transfer of assets to the beneficiaries.

If the person who died did not have a will, the probate would be called an “intestate” proceeding. The beneficiaries would be determined by Florida statute. This does not mean that the state gets the money. Relatives are the beneficiaries based on the statute.

If the person who died had a will, the probate would be called a “testate” proceeding. The will would have to be filed with the probate court. If the will is valid and not contested, the court would enter an order admitting the will to probate.

An attorney can assist you with preparing the necessary paperwork what must be filed with the court to open the estate. There is a court process that will take some time, but not as long as many fear. There is a quick procedure in small estates. A summary administration can be used in estates of under $75,000.00.

In larger estates, a formal administration would be required. Letters of administration appointing a personal representative would be signed by the judge to authorize the representative to act on behalf of the estate. Known creditors must be provided proper notice to permit them to file a claim in the estate. Additionally, a notice to creditors must be published providing 90 days to file a claim. Special orders will be necessary for some matters, such as to sell real property. A petition to determine homestead can be filed in certain cases to ensure that the homestead of the decedent would not have to be sold to pay creditors.

The above are just a few of the procedures that may be necessary. Each case is different. These procedures can be discussed with your attorney.

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