Florida Probate Administration

If you would like to send us information regarding a probate matter or if you would like additional information regarding our services, please complete our client request form. 

If a friend or loved one has passed away, steps must be taken to transfer the decedent's property to beneficiaries of the decedent's estate, to satisfy any creditor's of the decedent and to make required tax filings, if necessary. Florida has a fairly comprehensive probate process. However, a full probate administration may not always be necessary. To learn more about the probate process in Florida and when probate is necessary, please feel free to review the information on this page.

When is Probate Needed?

The need for a probate administration usually depends on two factors: the manner in which the decedent's property is owned and the nature of the decedent's creditors, if any. In general, assets may be owned in one of four manners: assets may be untitled, in which case ownership is proven by extrinsic evidence, such as a sales receipt or possession. Assets may be titled, in which case ownership has been registered in some manner. Titled property may be held in a person's sole name, in joint name with one or more persons or by a custodian or trustee. Any property that is titled in a persons sole name without any additional contractual requirements (such as "pay of death"), must pass through the probate process to be distributed to the decedent's beneficiaries. For example, if John Doe holds a brokerage account with XYZ Brokerage Company in his sole name without any transfer on death requirements, a probate administration must be opened in order to move the proceeds of the account to John's wife. 

However, joint title or pay on death instructions will avoid the need for a probate administration. If when John opened the account he indicated on the brokerage contract that upon his death his wife should receive the account (pay on death) or titled the account in joint name with rights of survivorship, then XYZ Brokerage Company will pass the proceeds of the account to John's wife upon presentation of a death certificate showing John's death (and possibly an affidavit by the surviving spouse). 

Assets may also be held by a trustee or custodian. Once ownership of the assets is transferred to the trustee, the trustee controls the disposition of the assets on the death of the grantor to the trust. The terms of the trust then dictate the manner in which title to the assets held by the trustee pass. Thus, assets titled to a properly structured trust agreement, may pass to the beneficiaries of the trust agreement without passing through probate. 

Even though assets may pass pursuant to joint title or trust, probate proceedings should be considered. At the minimum, the original will, if located, should be filed with the clerk of the probate court in the county in which the decedent resided. There is no charge for this service. In addition, a Preliminary Notice and Report or non-tax affidavit (depending upon the date of death) should be completed. Finally, a final income tax return, a Florida intangible tax return and an estate tax return, if required, must be filed with the appropriate government authorities. Title transfers must also be completed. If real property is involved, special transfer requirements apply and must be followed carefully or title clouds can arise causing problems with the property down the road. 

Our attorneys can assist you in evaluating whether or not a probate proceeding is required and advise you regarding the required title transfer documentation and tax returns, if any. 

To request probate services, please complete our client request form.