Florida Probate Law

If a decedent dies while domiciled in Florida, or owning real estate in Florida, then you must be subject to the Florida probate law (if the property was not owned jointly). The execution and probate of Wills, and for what beneficiary gets what if there was not will (intestate), is set forth in detail in the Florida Probate Code, which is Florida Statute Sections 732.101 through 735.302.

If the decedent owned non-jointly owned assets in Florida, then you must go through the probate process and have a Florida probate attorney assist you. There is only one situation, in which the Court allows for a personal representative to qualify for Disposition of Personal Property without Administration. This statute, section 735.301 states as follows:

735.301 Disposition without administration

1. No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does no exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
2. Upon informal application by affidavit, letter, or otherwise by any interested party, and is the court is satisfied that subsection (1) is applicable, the court, by letter of other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
3. Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.

Other than those qualifying under the statute referenced above, or those cases where all assets are owned jointly, you will need to Petition the probate Court for administration, and follow all of the rules set forth in the Florida Probate Code.

If a decedent dies without a valid Will, then he/she dies "intestate". In the Statutes, they set forth who will be the beneficiary of what assets of the estate. There are no choices after a decedent has died, the law is mandatory and unforgiving. For example, if a decedent had a child that they wanted to disinherit, or a spouse for whom he/she wanted to leave nothing, then there a must be a valid Will stating that, prior to death.

The Florida Probate law also sets forth how a Will must be drawn and executed in order to be considered valid, and who also who can legally make a Will. This statute states as follows:

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

Every will must be in writing and executed as follows:

(1)(a) Testator's signature. -

1. The testator must sign the will at the end; or
2. The testator's name must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction.

(b) Witnesses - the testator's
1. Signing, or
2. Acknowledgment:
• that he or she has previously signed the will, or
• that another person has subscribed the testator's name to it. Must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures - the attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator's handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, bay a person who is eligible for military legal assistance is valid as a will in this state.

(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.

(5) A codicil shall be executed with the same formalities as a will.

Florida probate law and the execution and probate of Wills is a complicated process, so please consult a Florida probate attorney for more information.