Probate is the process of winding up a deceased's financial responsibilities and transferring legal ownership of her property to new owners. An executor, called a personal representative in Florida, is appointed by the probate division of the Circuit Court to stand in for the deceased by paying creditors and taxes and distributing all personal and real property to the heirs named in the will, or as identified by state statute, in the event there is no will. All duties are detailed in Chapter 733, Florida Statutes, including ethical requirements by which the personal representative must abide.
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Personal Representative Appointment
The Circuit Court appoints a personal representative -- generally an individual named in the will or a relative of the deceased -- to oversee the probate process. Some Florida counties require the estate to post a bond on behalf of the personal representative as protection for creditors and heirs. In the unlikely event the personal representative mismanages the estate or steals from it, the bond money covers the damages. Under Rule 5.030, Florida Rules of Probate Court, all personal representatives must be represented by an attorney licensed to practice within the state, unless the personal representative is the sole heir to the estate.
The personal representative files an inventory of all the deceased's personal and real property within 60 days of her appointment. The inventory consists of a list of all real property and all personal property of value, such as cars, art, antiques, bank and investment accounts. Each item must be accompanied by its fair market value as of the date of death. It is permissible for the personal representative to obtain professional valuations of estate items.
Notice to Creditors
Creditors are identified by the personal representative, who then serves each creditor with a Notice to Creditors; these known creditors have one month to file claims against the estate. The Notice is also published in a local newspaper for several consecutive weeks to allow any unknown creditors to be notified of the probate. To be valid, all unknown creditor claims must be filed with the personal representative within three months of first publication.
Payment of Creditors, Distribution to Heirs
If the estate does not have enough money to pay all creditors, some assets may be sold to make up the difference between what the estate has and what it owes. If the estate is still short, the Florida Probate Code tells the personal representative the order in which to pay the claims. After creditors are paid, the estate's remaining assets are distributed to the heirs as designated in the will. If there is no will, the Florida Probate Code tells the personal representative who to give portions of the estate to by degree of blood relationship, which is via the order of intestate succession.
Final Accounting, Closing the Estate, Payment
After the personal representative performs all her responsibilities, she files a final accounting with the probate court that lists all the business transactions executed on behalf of the estate to fulfill the requirements of the probate. She then asks the court to close the probate by filing a Petition for Discharge. If granted, the court issues an order closing the estate. The personal representative is paid for her time and the services provided during the course of the probate. Payment usually amounts to approximately three percent of the estate's total assets, unless the court orders an increase or decease of this amount. The personal representative is also reimbursed from estate proceeds for any out-of-pocket expenses incurred while performing her personal representative responsibilities.