Probate FAQ — Frequently Asked Questions — Probate Legal Group, PA

Question 1

What is probate?

Accepted Answer

Probate is the court-supervised legal process of settling a deceased person's estate. It involves validating the will (if one exists), appointing a personal representative, notifying creditors, paying debts and taxes, and distributing the remaining assets to beneficiaries. Not all assets go through probate — only those held solely in the decedent's name without a designated beneficiary.

Question 2

Is probate always required in Florida?

Accepted Answer

Not always. If the total value of assets subject to probate is $75,000 or less (or the decedent has been dead for more than two years), a simplified process called Summary Administration may be available. Assets held in a revocable living trust, jointly owned property with right of survivorship, and accounts with designated beneficiaries (such as life insurance or retirement accounts) pass outside of probate entirely.

Question 3

What is the difference between formal and summary administration?

Accepted Answer

Formal Administration is the standard probate process, required for most estates. It involves appointing a personal representative, notifying creditors, filing an inventory, and obtaining court approval for distributions. Summary Administration is a simplified, faster process available for smaller estates (under $75,000 in probate assets) or when the decedent has been dead for more than two years. Summary Administration does not require the appointment of a personal representative.

Question 4

What assets go through probate?

Accepted Answer

Assets that go through probate are those held solely in the decedent's name without a beneficiary designation. This typically includes real property titled only in the decedent's name, bank accounts without a payable-on-death designation, investment accounts without a transfer-on-death designation, and personal property. Assets that do NOT go through probate include jointly owned property with right of survivorship, life insurance with a named beneficiary, retirement accounts (IRA, 401k) with a named beneficiary, and assets held in a revocable living trust.

Question 5

How long does probate take in Florida?

Accepted Answer

A straightforward formal administration typically takes 6–12 months. More complex estates — those with significant assets, real property in multiple states, business interests, or disputes among beneficiaries — can take 18 months to 3 years or longer. Summary Administration can often be completed in 4–8 weeks. The timeline depends on the complexity of the estate, the responsiveness of financial institutions, and whether any disputes arise.

Question 6

How much does probate cost?

Accepted Answer

Probate costs in Florida include court filing fees, publication costs, appraiser fees, and attorney fees. Florida law sets statutory attorney fees based on the value of the estate: 3% on the first $1 million, 2.5% on the next $4 million, and so on. Additional fees may apply for extraordinary services such as litigation, tax work, or selling real property. We provide a clear fee estimate at the outset so there are no surprises.

Question 7

Can probate be avoided?

Accepted Answer

Yes — through proper estate planning. A revocable living trust is the most comprehensive tool for avoiding probate, as assets held in trust pass directly to beneficiaries without court involvement. Other strategies include adding beneficiary designations to bank and investment accounts, using payable-on-death or transfer-on-death designations, and holding property jointly with right of survivorship. We recommend consulting an estate planning attorney to determine the right approach for your situation.

Question 8

Who pays the costs of probate?

Accepted Answer

Probate costs — including attorney fees, court fees, and personal representative compensation — are paid from the estate's assets before distributions are made to beneficiaries. The personal representative is entitled to reasonable compensation under Florida law, typically a percentage of the estate's value. Beneficiaries do not pay probate costs out of pocket; the estate bears these expenses.

Question 9

What is a personal representative (executor)?

Accepted Answer

A personal representative (called an executor in some states) is the person appointed by the court to administer the estate. Their duties include locating and securing estate assets, notifying creditors and beneficiaries, paying valid debts and taxes, and distributing the remaining assets to beneficiaries. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.

Question 10

Who can serve as personal representative in Florida?

Accepted Answer

In Florida, a personal representative must be at least 18 years old, mentally and physically capable of performing the duties, and either a Florida resident or a close relative of the decedent (spouse, child, sibling, or parent). Non-resident non-relatives generally cannot serve as personal representative in Florida. Banks and trust companies with trust powers in Florida may also serve.

Question 11

What if there is no will — who administers the estate?

Accepted Answer

If there is no will (intestate estate), the court will appoint an administrator to serve the same role as a personal representative. Florida law establishes a priority order for who may be appointed: the surviving spouse has first priority, followed by the person selected by a majority of the heirs, then the heir nearest in degree of kinship. The estate is then distributed according to Florida's intestacy laws.

Question 12

Can a personal representative be removed?

Accepted Answer

Yes. A personal representative can be removed by the court for cause — including mismanagement of estate assets, failure to perform duties, incapacity, or a conflict of interest. Beneficiaries or other interested parties may petition the court for removal. If you have concerns about how an estate is being administered, we can advise you on your options.

Question 13

Can a will be challenged?

Accepted Answer

Yes. A will can be challenged on several grounds, including lack of testamentary capacity (the decedent did not understand what they were signing), undue influence (someone pressured the decedent into signing), fraud, or improper execution (the will was not signed or witnessed correctly). Will contests must be filed within a strict deadline after the will is admitted to probate. If you have concerns about the validity of a will, contact us promptly.

Question 14

What if I believe the personal representative is mismanaging the estate?

Accepted Answer

Beneficiaries and heirs have the right to receive an accounting of the estate's assets and transactions. If you believe the personal representative is mismanaging assets, failing to act, or breaching their fiduciary duty, you may petition the court for an accounting, surcharge (monetary damages), or removal of the personal representative. We represent both personal representatives and beneficiaries in these disputes.

Question 15

What happens if beneficiaries disagree about the estate?

Accepted Answer

Disputes among beneficiaries are common and can involve disagreements about asset valuation, the interpretation of will provisions, or the conduct of the personal representative. Many disputes can be resolved through negotiation or mediation without court involvement. When litigation is necessary, we provide experienced representation in probate court. We always explore settlement options first to minimize cost and delay.

Probate Questions, Answered Plainly

Probate Basics

Timeline & Cost

The Personal Representative

Disputes & Contested Matters

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