Generally, probate is the process of gathering a deceased person’s estate, paying his final debts and distributing the remaining assets to beneficiaries. Florida’s circuit courts oversee probate cases in accordance with Florida’s probate laws, found in Chapters 731 through 735 of the Florida statutes. These laws address who can inherit from a decedent, as well as how the inheritances are distributed.
When a decedent has a will, it may be admitted to a Florida probate court to start the process of estate administration, unless the estate is so small that it does not require administration. Once the court determines the will is valid, it will likely appoint the executor – or personal representative – named in the will as the administrator of the decedent’s estate. The executor must follow Florida’s probate rules, including the requirements to file certain documents with the court.
If a decedent didn’t have a will, he is said to have died “intestate,” and probate procedures still apply to his estate. In such cases, courts oversee the distribution of the estate, as prescribed in Florida’s laws of intestate succession. These laws allow the decedent’s close family members to inherit his estate, starting with his spouse and children. For example, if the decedent had no children or had children only with his surviving spouse, his surviving spouse inherits his entire estate. If he had children from a prior relationship, his surviving spouse inherits half of his estate and the children inherit the other half.
Many decedents have debts when they die, and creditors are entitled to payment from the decedent’s estate. Probate cases include a three-month waiting period during which creditors must file their claims against the estate, or the claim is forfeited. Typically, the executor pays the creditors’ claims out of the assets in the estate, and sometimes the executor must appraise and sell some assets. Appraisals may also be necessary if the estate’s value is to be split between beneficiaries.
Probate can take several months or more to complete, and the decedent’s spouse and children may need money to live on in the meantime, so Florida law provides a family allowance that is available if the decedent lived in Florida when he died. The family allowance provides money to the surviving spouse or children to pay their expenses until the probate case is complete and assets are distributed. The family allowance cannot exceed $18,000, which is payable in a lump sum or in installments.