Frequently Asked Questions

In Florida, if the only person on the title/deed was your mom/dad, it will likely take a probate to get the house into your name.  If you want me to take a look at the deed, and tell you if a probate is needed for the house, I can usually look it up online; just email me the address of the property.  My email is wilkerson@wilkersonlawfirm.com   This is for Florida property only, and I will check for free.

A probate in simple terms is a court case.  In the case, actions are taken to distribute a deceased person's items/property as they are supposed to be distributed and get them titled as they need to be titled, if necessary.  It should be noted that not all property/items must go through a probate to be distributed after someone passes.   For example, if an insurance policy names a beneficiary or if there is a joint account holder on a bank acccount, the life insurance money and bank account will likely pass outside of probate with just a little paperwork and no court involvement at all.  If you have questions about wether a probate is necessary in your situation, please feel free to book a free telephone consultation.  It can be booked right from this webiste.  These consultations are for Florida probates only.  I won't be able to tell you the law in other states.

In Florida, there are different types of probates.  There are summary probates that can be wrapped up in a matter of weeks, and there are formal probates that often take six months to a year.  If there are disputes in a probate (you know -- the fighting relatives like you see on t.v. and hear about in real life too), that can make the case take MUCH longer. How long it takes depends very much on the facts of the case.   If you would like to present your facts to me, I can tell you if you will need a summary or formal probate and give you an educated opinion on how long it would take.  You can book a free phone consultation through this website to discuss your Florida probate questions.  

It depends on what property/items they had and if there is something already set up to pass those properties/items to other people, such as a pay on death beneficiary set up on a bank account.  If not, then the property passes to relatives through the probate process.  Which relatives?  There are Florida laws that say who gets what in a probate with no will.  I am going to paste the laws here that say who gets what.  They are written in "legalese", so if these laws boggle your mind, feel free to set up a free phone consultation through this website, and we can go over your situation together. 

*****Note "intestate" just means there is no will

732.102 Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

732.103 Share of other heirs.—The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

It is often mistakenly assumed that a probate is not needed if someone had a will.  It is easy to see why one would think this, but it is not true.  If there was something like a bank account owned only in the decedent's name with no pay on death beneficiary or a house only in the decedent's name, a probate will be necessary to pass the property, even though there is a will.  Whether someone has a will or not does not determine whether a probate is needed. So why have one?  Read on. The difference in probate when there is a will v. when there is no will is that the decedent gets to have his or her say in the probate process.  The decedent, by  nominating a personal representative in his or her will, tells the court who he or she trusts to have authority to carryout his or her wishes.  The decedent, by having the will, also tells the court who gets to inherit his or her property/items.    If there is no will, the law controls those things regardless of what the decedent might have wanted.   When the lawmakers wrote the probate laws, they tried to make laws that would be most inline with what a person would want, assuming the person would be most concerned about his or her spouse, children etc.   So sometimes, things work out as it should be even with no will. However, this is often not the case in blended families or for people who are not close to certain members of their families or for people who have life partners but are not legally married.  So, a will is still important, but it does not avoid probate.   There are estate planning actions that can be taken to avoid probate, but having a will is not one of them, although there are other good reasons to have a will.

There is no reading of the will in Florida as seen on television.  The law in Florida requires anyone in possession of a will to deposit it with the clerk of court in the county where the person who passed away resided.  By law, this is to be done within 10 days of learning the person passed away.  Sometimes the person with the will doesn't know about this law and does not do it within 10 days.  If that happens, they usually just deposit it as soon as they learn they are supposed to do it.  Sometimes, they will hire an attorney to deposit the will for them, but this isn't necessary as it is free and easy to deposit an original will with the clerk of court.

If you have the decedent's original will,  to deposit the will, you just take it down to the clerk of court where the person resided.  You just tell the clerk at the service window that you have an original will that needs to be deposited.  It is usually easy and free.  The clerk will likely request information, such as the decedent's birthdate or the last four digits of the social security number if you have it.  

 It's a good idea to make a copy first before you deposit the original will so that you can have quick and easy access to what it says.  However, you should never take the will apart to copy it.   A copy or scan should be made manually on the copy/scan machine glass without taking the will apart.  You could also take pictures of it with your phone if you do not have access to a copy/scan machine.  Just make sure you can read all of the pages. 

When you deposit the original will, you should be given a receipt (even though it is free) or proof you filed it - keep that for your records. 

If you do not live near the decedent's county of residence, you can mail in the original will. In that case, you absolutely want to make a copy and you absolutely want to mail it with tracking.

Once the will is deposited, you can get a copy of the will from the clerk of court. 

You can sue a person to force them to deposit the will and ask for the court to award you attorney's fees.  Usually, it doesn't get to that.  Usually, once a person is informed of the law, they deposit the will.