“What Is Probate, Anyway?”

A primer on Florida probate - what it is and how it works.

Probate is the name of a court process for transferring ownership of property after the owner’s death to the persons who have inherited that property.

Probate happens whether or not the person now deceased left a Last Will. A Last Will never avoids probate. On the contrary, the Last Will is a set of instructions to the probate court as to who should be given the assets.

What if there is no Last Will? Contrary to a common myth, the state does not seize the property. As long as there is some relative of the decedent, up to and including first cousins, the Legislature has decided through the statutes who will inherit when there is no Last Will. Spouses and children inherit first, of course, depending on the specific family situation. If there are no descendants and no spouse, any surviving parent of the decedent would inherit. If neither parent is alive, siblings (brothers or sisters), or children of any sibling who predeceased the decedent, would inherit.

Let’s get rid of some other myths about probate:

1. There is no “reading of the will” in Florida. Of course, the court and the heirs do read the will, but silently, on their own.

2. You don’t go to court for an uncontested estate. The judges in Florida don’t want to see you or your lawyer unless there is a hearing, and there is only a hearing if there is a problem or dispute of some kind. Everything is done by mail or email.

3. Most estates have no estate tax problem. Florida has no inheritance or estate tax, and the federal estate tax does not apply to estates under $5.49 million per individual in 2017, and it will increase in later years. That excludes 99% of all estates.

4. Probate does not have to cost a fortune. There is a risk of overpaying your probate lawyer, if the estate is over $200,000 and the lawyer charges the statutory 3% fee. But plenty of law firms do not charge a percentage, and on an hourly rate the cost in most counties is not too bad. Which county handles the probate? If the decedent was a Florida resident, probate is filed in the “home county” (called domicile). For out-of-state residents owning real property in Florida, probate can be filed in any county in which he or she owned real property.

Florida’s probate rules are very detailed, a little tricky, and definitely not user-friendly, which is one reason why most estates require an attorney. However, those same rules are highly protective of the rights of creditors and heirs, which is a good thing.