BUSINESS LAW 101 / Starting Probate

By Albert L. Kelley

Probate is the process of settling the affairs of a person once they have died (the person who dies is known as the Decedent). It means paying their bills and distributing their property. There are different ways to classify the probate process. If the person who died has a will, we refer to it as a “testate” probate; if they do not, it is referred to as “intestate”. It can also be divided as Formal or Summary. For now, we will discuss formal probate proceedings. It is always a court process, as only a Court-appointed personal representative has the right to speak for the deceased person. Even if a will names a personal representative, before that person is appointed by the Court, their authority is limited.

The statutes set out a process for probate procedures. Whether testate or intestate, it starts with filing a Petition for Administration. Probate is all about the forms. The Supreme Court has approved a series of forms that are used for the probate process. Generally, you must use these forms or slight modifications of them (Some Courts will not accept anything but the official forms and even have their own online forms that must be used). The Petition may be filed by any interested person- a beneficiary, family member, or creditor. This person is referred to as the “Petitioner”.

The Petition requires certain information: It starts with the Petitioner’s name, address and what type of interest they have in the estate. Next is the Decedent’s information. The Petition must list the Decedent’s name, their last address, the date and place where they died, the last four digits of their social security number, where their primary residence was when they died and whether they were married or not. Next is a list of the names and address of any beneficiaries. If the beneficiaries are under 18, the petition must also state their birthdates. Next the Petition must specify why the probate is being filed in this particular county (the decedent lived there when they died, the decedent owned real property there, etc.). Next is the request for a personal representative. The Petitioner must ask for a person to be appointed personal representative and state why that person has preference. For example, if the proposed personal representative is the spouse of the decedent or the direct descendent of an unmarried decedent, they have priority. However, if there are more than one direct descendent, the other descendants need to file a consent and waiver of priority form. Next the Petition must list an inventory of the decedent’s property along with a value of that property and whether the estate will need to file an estate tax return. Next the Petition must state if there is a will or not. If there is a will, the original copy of the will must be filed with the Court with the Petition. Finally, the Petition must state whether there is another probate proceeding filed anywhere else (Probate cases are generally filed where the decedent lived, but when real estate is involved, a probate case must be filed where the real estate is located. Therefore, it is possible to have a primary probate case in Florida where the decedent lived, and a second probate case (called an ancillary probate) in the state where they owned real estate).

With the Petition for Administration, an original copy of the death certificate must be filed with the Clerk of Court.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of 4 law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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