Florida Probate Law

The Florida Probate Law sets out the requirements and procedure for admitting a Will to probate. The sections are found in Chapters 733 to 735 of the Florida probate code.

Chapter 733 deals with administration of estates. Chapter 734 governs foreign personal representatives and ancillary administration (where the Will has already been probated in another state). Chapter

735 of the Florida Probate Law concerns summary administration for small estates.

Below are the select provisions of the probate law in Florida:
733.101 Venue of probate proceedings.

(1) The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.
(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.

733.103 Effect of probate.

(1) Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.
(2) In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.

733.105 Determination of beneficiaries.

(1) When property passes by intestate succession or the will is unclear and there is doubt about:
(a) Who is entitled to receive any part of the property, or
(b) The shares and amounts that any person is entitled to receive,
any interested person may petition the court to determine beneficiaries or their shares.
(2) Any personal representative who makes distribution or takes any other action pursuant to an order determining beneficiaries shall be fully protected.
(3) A separate civil action to determine beneficiaries may be brought when an estate has not been administered.

733.201 Proof of wills.
(1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof.
(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.

733.202 Petition.
Any interested person may petition for administration.
733.212 Notice of administration; filing of objections.
(1) The personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative:
(a) The decedent’s surviving spouse;
(b) Beneficiaries;
(c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103(14), if each trustee is also a personal representative of the estate; and
(d) Persons who may be entitled to exempt property
in the manner provided for service of formal notice, unless served under s. 733.2123. The personal representative may similarly serve a copy of the notice on any devisees under a known prior will or heirs or others who claim or may claim an interest in the estate.
(2) The notice shall state:
(a) The name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils.
(b) The name and address of the personal representative and the name and address of the personal representative’s attorney.
(c) That any interested person on whom a copy of the notice of administration is served must file on or before the date that is 3 months after the date of service of a copy of the notice of administration on that person any objection that challenges the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court.
(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.
(e) That an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.
(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.
(4) The appointment of a personal representative or a successor personal representative shall not extend or renew the period for filing objections under this section, unless a new will or codicil is admitted.
(5) The personal representative is not individually liable to any person for giving notice under this section, regardless of whether it is later determined that notice was not required by this section. The service of notice in accordance with this section shall not be construed as conferring any right.
(6) If the personal representative in good faith fails to give notice required by this section, the personal representative is not liable to any person for the failure. Liability, if any, for the failure is on the estate.
(7) If a will or codicil is subsequently admitted to probate, the personal representative shall promptly serve a copy of a new notice of administration as required for an initial will admission.
(8) For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which such service has been waived, service shall be deemed to occur on the date the waiver is filed.

If you would like to see how the Florida Probate Law affects you and the process for probating a Last Will and Testament, see our Florida probate rules page.


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