Is probate required if the deceased left a Will in Florida? Simply put, the answer is generally yes. It is usually necessary to go through probate when there is a Will. The Will must first be deemed to be valid on its face to be accepted by the probate court (that is, the court will look to see if the Will is properly signed by the deceased, witnesses, and, in some instances Notary Public). Furthermore, there are certain considerations that must be made on a case by case basis to determine if probate is even necessary, such as if there are any probatable assets in the estate, or, for example, in cases involving a wrongful death.

As you would expect, dealing with these kinds of things can be extremely complex, and thus each case must be dealt with circumstantially. In this article, we will take a look at what the probate process entails and whether or not probate should be carried out on Wills in Florida.

This is to ensure that there is no wrongdoing and no misallocation of assets to potentially fraudulent, or incorrect beneficiaries. Once the court has gone on to validate the Will, the court will officially appoint the Personal Representative of the estate or the “executor” who, with the assistance of their probate lawyer, will then proceed to identify and locate all rightful beneficiaries of the Will, identify and collect all of the deceased’s assets for probate, and locate and notify the decedent’s creditors of the death. These actions are subsequently followed by the payment of legitimate creditors, taxes, and the expenses of administering the estate. Finally, after all of these processes are complete, the remaining assets are distributed among the beneficiaries.

Depending on how complex the estate is and how many creditors and beneficiaries there are, this process can take several years to complete. However typically, the process takes between six months and a year in Florida. Here are some things that can substantially slow down probate and cause lengthy setbacks in the process:

• A challenge to the validity of the will
• Any property that is tied to the estate
• Business ownership
• Long lists of creditors
• Claims for wrongful death or personal injury
• Taxes owed by the estate and those owed by the deceased prior to death

Long setbacks are mainly put down to long and drawn-out creditor lawsuits, beneficiary disputes, and situations where the estate may be liable to pay any taxes. If estate taxes must be paid, the process will likely take a minimum of two years to finalize.

Finally, the case will be reviewed for closure at the probate court, where they will determine whether or not all of the requirements for proper probate administration have been successfully completed. If they have, the court will allow the court probate administration to be closed out, and the Personal Representative will be discharged of further duties to the estate.

In these cases, for example, a surviving spouse with no children might be the sole heir or beneficiary; however, it can get extremely complicated when there are children involved, and handling estates for decedent’s with second or third marriages, blended families, step-children, and such can be extremely complicated to put it mildly.

As you would expect, many people want to try to put in place measures to avoid a messy probate process. So, even though having a Will does not avoid probate in most instances, it does tend to simplify or streamline the probate process. This helps to save the deceased loved ones from the long drawn out process that contested probate entails, and allows them to divide the estate as per their wishes, and not based on some preferences put in place by the state legislature or the courts.

It should be noted that, in Florida, all original Wills must be filed with the court following death. This must be done within ten days of the decedent's death, as it puts the Will into the custody of the court. It should also be noted that this process is entirely different from probate. When a valid Will is presented, probate must still be petitioned for and does not happen automatically.

During these times, it is especially important to distribute assets appropriately as the deceased’s death has potentially been through the fault of another person or entity. This avoids any fraudulent or underhanded handling of the estate or the wrongful death claim itself.

This latter category of assets may include any real estate that is in the sole name of the decedent, any solely owned bank accounts, any life insurance policies that are made payable to the estate, or do not list specific beneficiaries, and often foreign assets, business assets, and investment assets.

One of the best ways to avoid probate is to use a Revocable Living Trust. This type of trust is particularly common for those who have larger estates. This involves all of the assets being placed within a trust that the owner can access, while they are still alive. Once they have passed away, all of the assets within the trust are then passed on to the stated beneficiaries of the trust, thus typically avoiding the probate process altogether for any assets covered by the trust.

Another method for avoiding probate is to use joint ownership with rights of survivorship. If you add another person as a joint owner to your bank accounts, property, or investments, all of these assets should pass to the designated joint owner without probate. However, this does have some, often significant drawbacks, and you should seek legal advice prior to adding joint owners to your assets.