How to Probate a Will

Probate attorneys at Cromartie & Cromartie in Daytona Beach provide information on what to expect when probating a will and how the court decides the validity of a will.

The first step in Florida when probating a will is to file the will, along with certain other papers, with the clerk of the Circuit Court.  The will is usually filed in the county where the decedent, or person who died, lived, and there is a filing fee associated with starting probate. The Circuit Court judge is in charge of the probate process, and will determine if the personal representative chosen by the decedent can serve in such capacity.  If the judge decides the personal representative meets the statutory requirements, the court will issue Letters of Administration to the personal representative which will allow him or her to proceed with probate.  In Florida, personal representatives usually must be represented by attorneys.

The purpose of probate is to validate the will, gather a list of all the non-exempt assets in the estate, pay off creditors, settle tax issues, and then distribute the estate.  The probate process will change legal title of the assets from the decedent’s name to the beneficiary’s. If there is not enough money in the estate to pay creditors, the personal representative will have to sell assets to make sure creditors and taxes are paid.  Additionally, if the will specifies that assets are to be sold and proceeds distributed to beneficiaries, it is the personal representative’s job to sell those assets. 

Probate takes at least three months, because Florida law provides that estates must remain open for that amount of time to allow creditors to press their claims.  However, the settlement of an estate will probably take longer.  Time of settlement depends on many things, such as whether or not assets have to be sold, the resolution of creditor claims and determination if the claims are legitimate, and any litigation related to the estate or will. 

The Circuit Court judge assigned to the will’s probate determines if the will is valid under Florida statute.  If the will is challenged as invalid, then an evidentiary court case can proceed and  validity decided.  It is legal to omit someone as a beneficiary in Florida, and their omission does not invalidate a will.

If you would like to consult with an attorney, call estate attorneys Cromartie & Cromartie, P.A. at 386-615-9521, or complete our web form.