Probating a Florida Will

This page provides tips and advice about probating a Will in Florida. The Florida Probate Rules are found in the probate code, which governs the administration process and sets out the rights and obligations of each party.

Who may probate a Florida Will?

The probate code allows any ‘interested person’ to file a petition for probate (section 733.202).

An interested person is defined as any person who may reasonably be expected to be affected by the outcome of the proceeding. This includes:

  • the executor named in the Will;
  • The spouse;
  • Children;
  • Beneficiaries named in the Will; and
  • Creditors of the estate.

Requirement to Produce the Florida Will

The Florida Probate Rules require any person who has custody of an original Florida Last Will and Testament to deposit same with the appropriate clerk of court within 10 days after receiving information that the testator is dead.

The person must also provide the testator’s date of death or social security number at the time of depositing the Will. 732.901

Evidence required to prove the Will

If the Florida Will is self-proved then the court may admit the Last Will to probate without further proof.

If not self-proved, then the court will require any attesting witness to provide evidence on oath.

Where both witnesses cannot be found or become incapacitated after execution, then a Florida Will which has not been self-proved may be admitted to probate if the personal representative swears on oath that he/she believes the writing to be the true Last Will and Testament of the decedent. 733.201

However, this may not be sufficient where the Last Will is being contested.

What if the Will is lost or destroyed?

If a Florida Last Will and Testament has been lost or accidentally destroyed, it may still be probated under the Florida Probate Rules. The specific content of the Will must be proved by the testimony of two disinterested witnesses. Alternatively, one disinterested witness may prove a correct copy of the original Will. 733.207

This is another reason why it’s important to always have independent witnesses.

What if a later Will is found?

Sometimes a person may find a later Will drawn up by the testator prior to his/her death. If this happens, any interested person may petition the court to revoke the probate of the earlier Will and to probate the later document.

However, this needs to be done prior to the estate being fully administered or prior to the personal representative discharged. Otherwise, any subsequent Will cannot be offered to the court.

Who is given preference for being appointment as personal representative?

If there is a Florida Will, the order of priority is:

  1. The executor, or his/her successor, nominated by the Will;
  2. A person selected by a majority in interest of the persons entitled to the estate;
  3. A beneficiary under the Will (with the court being able to select the best qualified devisee). 733.301

If the Florida Last Will could not be proved, preference is given to:

  1. The spouse;
  2. The person selected by majority in interest of the heirs;
  3. The heir nearest in degree.

If none of the above persons make an application for appointment, then the court selects a suitable person to act as personal representative.

Notice of Administration

The personal representative is required to give notice of the probate proceedings in accordance with the Florida Probate Rules.

The notice of administration must state a number of formalities including the name of the decedent and the date of the Florida Will and any codicils. It must also notify the recipients that any objections must be filed within 3 months of service.  733.212

The personal representative must also publish a notice to creditors. Creditors must bring their claim against the estate within the required time or be forever barred. 733.2121

Small Estates

Summary administration may be used where:

  • the value of the estate (less exempt property) is $75,000 or less; or
  • the deceased has been dead for longer than 2 years. 735.201

The Florida Will still needs to be proved using the Florida Probate Rules as required for normal estates. Once the Will is proved and creditors (as reasonably ascertained by the personal representative) are paid, the court may enter an order for summary administration. This allows immediate distribution of the assets. No notice is required.

Persons receiving the decedent’s property are then liable for any claims against the estate on a pro rata basis up to the amount they actually received under the decedent’s Florida Will. Creditors have 2 years to issue proceedings to enforce their claims. However, if the beneficiaries or personal representative provide notice to creditors, then creditors only have 3 months to file their claims. 735.2063

No Administration Required

Administration of a Florida Last Will is not required by the Florida Probate Rules where the decedent only left exempt property going to the spouse or children, property exempt from creditor’s claims and other personal property (where the value does not exceed the funeral costs and expenses of the decedent’s last illness).

Any interested party may apply to the court by affidavit or letter to authorize the payment or transfer of such personal property to those entitled. 735.301

Florida Estate Tax

Estates are no longer required to file a Florida estate tax return for deaths occurring on or after January 1, 2005.

However, Florida still places an automatic tax lien on real property.

Where the estate is not required to file a federal return (Form 706), the personal representative needs to file an ‘Affidavit of No Florida Estate Tax Due’ (Form DR-312) in order to remove the lien.

If a federal estate tax return is required to be filed by the estate, then to remove the lien a Form DR-313 ‘Affidavit of No Florida Estate Tax Due When Federal Return is Required’ needs to be filed with the Florida Department of Revenue.

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