Files and maintains records relating to Probate and Guardianship matters.

Overview

Probate is the legal process by which the assets of a deceased person are properly distributed to the heirs or beneficiaries under a will. The Court oversees the estate to make sure debts are paid and proper distribution is made.

A will is defined as a declaration by a person of how he or she desires their property to be disposed of after his/her death. Such a declaration is revocable during their lifetime and has no purpose until death and is applicable to the situation which exists at the time of their death. The will may also contain other declarations of the testator as to what is to be done after his/her death so long as it disposes of some property.

A guardianship is generally defined as the relationship between a guardian and the ward. The guardian is the person or entity charged with the duty to take care of and manage the property and rights of another. The ward is considered incapable of managing their own affairs.

There are several kinds of guardianships, however, a person wishing to be appointed guardian must employ an attorney admitted to practice in the State of Florida. The attorney will prepare and file the necessary papers requesting the court to appoint a guardian of the ward. The guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. The powers of a guardian upon court approval are reflected in Section 744.441 of the Florida Statutes and the powers of a guardian without court approval are reflected in Section 744.444 of the Florida Statutes.

Probate proceedings are initiated with the filing of a Petition by the person asking to be appointed personal representative. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.

This type of proceeding is used when there are considerable assets and it is necessary to appoint a representative to act on behalf of the estate. The capacity in which the representative will act is determined by the Court at the time of appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.

Once an estate is filed with the court, a creditor may file a Statement of Claim against the estate. The claim should be filed within three months from the date of the first publication of the Notice of Administration. The Statement of Claim when filed becomes a part of the probate file and is subject to judicial consideration.

Summary Administration may be administered when the value of the entire estate subject to administration does not exceed $75,000.

The Disposition of Personal Property is filed to request release of assets of the deceased to the person who paid the final expenses, such as, funeral bills, medical bills for the last 60 days, etc. This procedure may be accomplished with the filing of a formal petition. The Clerk can assist you with the filing of an Application for Disposition of Personal Property Without Administration. There are very strict criteria that must be met before this type of probate can be filed. For example: the decedent's assets can only be in the form of non-exempt personal property such as furniture and automobiles. The value of the personal property cannot exceed the sum of the amount of funeral expenses and any necessary medical expenses incurred during the last 60 days of illness.

The court will review the application and decide if the circumstances warrant approval. If approved, the Court will transfer the assets to the appropriate party.

A Caveat is a document filed with the Clerk's office by a person or entity who is claiming to be a creditor or interested person in the estate of a decedent. When an estate is filed the Clerk's office will prepare and issue a document titled Notice to Caveator. After receiving the notice the creditor may file a Statement of Claim or any other document necessary to protect his interest.