Florida Petition for Probate

Introduction

Key Things to Know

1. 1

   Court and filing: the Petition for Administration (Fla. Stat. 733.202) is filed in the circuit court, probate division, of the county of the decedent's domicile, or of any county where the decedent's property is located if the decedent was not a Florida domiciliary (Fla. Stat. 733.101(1)). Ask the clerk whether the court requires a particular form; if it does, the court's form controls.

2. 2

   No authority until letters issue: nobody can collect assets, pay debts or transfer property for the estate until the court appoints a personal representative and letters issue. Being named executor in a will does not by itself give that authority.

3. 3

   Not every estate needs formal probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and Florida has summary administration and other small-estate routes. See DocDraft's small-estate-affidavit page.

4. 4

   Will custodian: whoever holds a will must deposit it with the clerk of the court having venue within 10 days after receiving information that the testator is dead, and the clerk keeps the original at least 20 years (Fla. Stat. 732.901(1),(4)). Ask the clerk or an attorney whether any deadline applies to petitioning for administration.

5. 5

   Who may serve: for a will, the person nominated in the will comes first, then a person selected by a majority in interest of those entitled to the estate, then a devisee; without a will, the surviving spouse, then the person chosen by a majority in interest of the heirs, then the nearest heir (Fla. Stat. 733.301). A person who is under 18 or has a felony conviction or a conviction for elder or disabled-adult abuse, neglect or exploitation cannot serve (Fla. Stat. 733.303(1)). The court decides, and appointment is not guaranteed.

6. 6

   Nonresidents: a person not domiciled in Florida cannot qualify unless an adopted child or adoptive parent, a lineal relative, a spouse, sibling, uncle, aunt, nephew or niece, a person lineally related to any of them, or the spouse of a person otherwise qualified (Fla. Stat. 733.304). A friend or out-of-state professional named in the will generally cannot serve.

7. 7

   Notice, claims and bond: after appointment the personal representative serves a notice of administration, which starts a 3-month period to object to the will, venue or jurisdiction (Fla. Stat. 733.212), and publishes a notice to creditors once a week for 2 consecutive weeks (Fla. Stat. 733.2121). A bond with surety is required unless the will or the court waives it (Fla. Stat. 733.402). Do not distribute assets, pay heirs or sell property before appointment or before the creditor period runs.

Florida Requirements for Petition for Probate

• Petition for Administration in Circuit Court

  The estate is opened by a Petition for Administration filed in the circuit court, probate division, and any interested person may petition (Fla. Stat. 733.202).

• Venue by Domicile or Property

  Venue is the county where the decedent was domiciled, or, if the decedent was not domiciled in Florida, any county where the decedent's property is located (Fla. Stat. 733.101(1)).

• 10-Day Will Deposit With the Clerk

  The custodian of a will must deposit it with the clerk of the court having venue within 10 days after receiving information that the testator is dead, and the clerk keeps it at least 20 years (Fla. Stat. 732.901(1),(4)).

• Priority and Disqualification

  Priority to serve follows the will's nomination, then majority selection, then devisees for a will, and the surviving spouse, then majority selection, then the nearest heir without one. A person under 18 or with certain convictions cannot serve (Fla. Stat. 733.301, 733.303(1)).

• Nonresident Must Be Related

  A person not domiciled in Florida can qualify as personal representative only if related to the decedent in a way listed in Fla. Stat. 733.304, such as a spouse, lineal relative, sibling, aunt, uncle, nephew or niece, or the spouse of a qualified person.

• Notice of Administration After Appointment

  The personal representative promptly serves a notice of administration on the surviving spouse, beneficiaries and others listed, which sets a 3-month period from service to object to the will, venue or jurisdiction (Fla. Stat. 733.212).

• Notice to Creditors and Claims Period

  The notice to creditors is published once a week for 2 consecutive weeks and served on known or reasonably ascertainable creditors; claims are due by the later of 3 months after first publication or 30 days after service on a creditor required to be served, with an outside limit of 2 years after death (Fla. Stat. 733.2121, 733.702(1), 733.710).

• Bond Unless Waived

  A bond with surety is required unless the will or the court waives it; the court sets the amount it deems sufficient (Fla. Stat. 733.402, 733.403).

• Estate and Representative Details in the Petition

  The petition identifies the petitioner and interest, the decedent and domicile, the will or intestacy, the heirs and beneficiaries, the estate value, the proposed personal representative and the bond request.