The Probate Department maintains the files on probate estates, wills, trusts and guardianships for both minors and incapacitated persons. They monitor, file, and store all pending case files and all wills that have been deposited with the Probate Department.
Probate is necessary whenever a deceased person leaves titled assets in their name alone. A party then files a petition for probate which allows distribution of the decedent’s assets. Guardianships are filed for both minors and incapacitated persons. However, all Guardianship matters in the State of Florida require an attorney (Rule 5.030). An individual, through their attorney, files for a guardian to be appointed for an adult person when they believe that person is not mentally capable of taking care of himself/herself. When a guardianship petition is filed on an adult, an accompanying petition to determine incapacity is filed in the Mental Health Department. The Mental Health Department will appoint a committee to evaluate the person and file their report with the court. The exception to this would be a guardian advocate petition. These petitions are for persons who are developmentally disabled. With these petitions, there is no requirement for the ward to be examined by a committee. Therefore, there will be no accompanying Mental Health file. Guardians can be appointed as guardian of the person only, property only or person and property.
Guardianships are also filed for minors when the minor child has inherited money or property in excess of $15,000.00 from a deceased relative, or received money from a settlement in excess of $15,000.00. In this case a guardian of the property is all that is needed if the minor child’s parents are living. If a minor child’s parents are deceased or unable to be appointed guardian, he/she may need a guardian of the person and property.
Disposition of Personal Property Without Administration may be filed without the assistance of an attorney and are handled by the Clerks in the Probate Department. These are filed when the amount of the estate does not exceed the amount of the preferred funeral expenses and the expenses of the last sixty days of the last illness. The Clerk assists the public and court by processing the forms, verifying the assets of the decedent and preparing the order allowing for distribution.
Probate also handles Petitions to Appoint a Successor Trustee. This is a court appointed individual who is responsible for managing another’s property. If there is a request for a new trustee, probate screens the request to ensure that all trust beneficiaries have agreed to the new trustee. As in all probate proceedings a hearing MAY be necessary since all probate, guardianship and trust cases are presented to the court for consideration of all orders.
FAQs
Is there a fee for depositing a will?
No.
Can a Will be deposited with the Court for safekeeping if the testator ( will maker) is still alive?
No.
What does “Probating a Will” mean?
It means taking all legal steps necessary to ensure a Will is valid and to admit the Will to probate.
What does “Estate” mean?
It relates to all property of a deceased person that is the subject of a probate action.
What does “Probating an Estate” mean?
This is a legal process provided for by Florida law which determines the value of a deceased person’s property and its distribution to heirs.
Where do probate proceedings take place?
Proceedings are held in the Circuit Court of the county where the deceased was domiciled or owned property.
Why is probate necessary?
To collect and determine the estate’s assets and to protect the assets of the estate. To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes. To legally transfer ownership of real property. To determine who is entitled to share in the estate and to distribute the property to the proper parties.
What happens if a person dies, and has left no will?
The property will be distributed in accordance with Florida law.
How long does it take to get a file from the Record Center?
The file will be sent to the department within two working days of receiving the request at Records Center
Guardianship Information
Guardianship is a legal procedure to protect the personal and/or property rights of an incapacitated person by having a Court appointed guardian. There are various types of guardianships. An attorney can assist you in determining what type of guardianship, if any, is necessary.
Guardianship cases are generally established when:
- Someone is declared incapacitated. An adult who isn’t capable of taking care of their own financial affairs and/or their own personal wellbeing.
- A guardianship is required for a minor who is the recipient of a court settlement over $15,000.
- A minor has inherited money more than $15,000 or real property.
- There is a need by a parent to have a guardian appointed because the parent is not going to be available for a period of time, such as a mother going into the military.
An individual may choose a person to be their guardian or the guardian of their minor child(ren), before they have a need for that guardian, by completing a Declaration of Pre-Need Guardian.