What is Probate?

By Carrie Smith, JD

At its most basic, probate is a court process that determines where the assets that were owned by the decedent, the legal term for the person who died, belong.  A probate judge oversees the process making determinations based on direction given in a Will or in statute if no Will exists.   If the decedent had a Will, that means that they died testate.  If the decedent died without a Will, that means they died intestate.

Dying testate means the court has directions to follow to help determine:

• Who should be appointed as Personal Representative (“Executor” in some states);
• What assets the decedent may have owned; and
• What the Decedent desired done with those assets (i.e., who gets what).

Dying intestate means that the assets owned by the Decedent are distributed pursuant to Florida Statute – the “laws of intestacy”.  Often this is not how the Decedent wanted their assets divided.  For example, in cases where the decedent was married at the time of their death:

• A spouse takes the entire intestate estate if there are no surviving descendants of the decedent.
• If the decedent had children who are also children of the spouse, then the spouse takes the entire estate.
• If the decedent had a spouse, but also had children that are not related the spouse by blood, then the spouse takes half the estate, and the children take the other half (equally divided by the number of children).

Florida law requires that the personal representative of an estate hire an attorney to provide counsel and guide them through the probate process.  Attorneys’ fees for probate are payable directly from the estate; therefore, the personal representative typically only pays out-of-pocket until there are funds in the estate account to reimburse for such expenses. 

At Ledbetter Law Group, we help clients through the probate process every day.  Similarly, we assist with the post-death administration of a decedent’s trust (which also has statutory requirements – check back for future blog posts on this subject ?).  If you have just lost a loved one & do not know where to start, call us – we are happy to help you navigate the Florida Probate process!