Probate FAQs

Probate is a legal process through which the assets of a deceased person are distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are disposed of and proper distribution is made. 

Q. What is probate

Probate is necessary whenever a deceased person leaves assets in their name alone. A party then files a petition for probate that allows distribution of the decedent's assets. Probate is used for the following:

1. To collect and determine the estate's assets and to protect the assets of the estate.
2. To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes.
3. To legally transfer ownership of real property.
4. To determine who is entitled to share in the estate and to distribute the property to the proper parties.

Q. Why is probate necessary

There are 4 basic types of proceedings for administering the decedent's estate:

1. Summary Administration: May be filed when the value of the entire estate does not exceed $75,000, or when the decedent has been dead for more than 2 years.

2. Formal Administration: Proceeding used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the Personal Representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the Personal Representative so that he/she may complete the administration of the estate

3. Disposition of Personal Property Without Administration: This type of proceeding is used to request release of the assets of the deceased to the heirs or other qualified parties. Under Section 735.301 , Florida Statutes, the estate must consist of personal property exempt from claim of creditors (see Section 732.402 Florida Statutes), and non-exempt personal property that does not exceed the sum of preferred funeral expenses (which are now $6,000) and reasonable and necessary medical and hospital expenses from the last 60 days of the last illness. There cannot be any real estate in the estate. The following must be provided along with the petition for disposition of personal property without administration:

• Itemized, paid funeral bill
• Paid receipts for any medical expenses incurred60 Days prior to death
• Certified copy of death certificate
• Documents verifying the asset to be released
• If the decedent has a will, it must be filed with the Clerk and Comptroller, St. Lucie County within 10 days of the notice of death
• Filing fee as set by Florida Statute

4. Petition to Admit Foreign Will: The purpose is to transfer title of real property in this state of a non-resident by means of filing an authenticated copy of the foreign will, the petition for probate, and the order admitting will to probate. This petition may only be filed if the decedent has been dead for more than two (2) years OR it may be filed at any time after the domiciliary PR has been discharged -if there has been no proceeding to administer the estate in Florida.

Q. What are the types of probate proceedings

A will is a document executed by a person which expresses that person’s wishes as to how property is to be disposed of after the person’s death. A will usually names a personal representative to administer the estate.

Q. What is a will

As long as it is valid in the state in which it was drawn up, it is valid in the state of Florida.

Q. Is my will valid even though it was drawn up in another state

The custodian of the will must deposit the will with the Clerk and Comptroller, St. Lucie County having venue of the estate within 10 days after receiving information that the person is deceased. The custodian must supply the testator’s date of death or social security number to the Clerk upon deposit of the will. For information on where to file, please see Florida Statute 733.101.

Q. Who Can Be a Premarital Course Provider? 

No. However, the custodian of the will may want to consult with an attorney before filing so that he or she may determine whether probate proceedings will be necessary. A will cannot be deposited with the court for safekeeping if the will Maker is still alive. 

Q. Is an attorney needed to deposit a will

The property will be distributed in accordance with Florida law. 

Q. What happens if a person dies and has left no will

It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate. 

Q. What happens if there is a will filed but no personal representative has been named

It means taking all legal steps necessary to assure a will is valid and to admit the will to probate. 

Q. What does probating a will mean

Yes, an authenticated copy of a will may be admitted to probate if the original could be admitted to probate in Florida.

Q. Can a copy of a will be probated

A small estate can be probated pro se. If seeking to become a personal representative of a decedent's estate, you must be represented by an attorney, unless the personal representative is an attorney or unless the personal representative is the sole person to receive assets from the estate.

Q. Do I have to have an attorney to do a probate

A caveat is a written notice filed with the Clerk by a creditor or an interested person to prevent either probate of a will or administration of an estate without notice.

Q. What is a Caveat

Letters of Administration are issued through the opening of a Formal Administration. 

Q. How do I get Letters of Administration

Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed personal representative and/or to distribute property depending on the size and complexity of property. The Petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries. 

Q. How are probate proceedings initiated

We do not do searches over the phone. You may locate this information through the Public Records section of our website, or you may mail in your request. You must send in a self-addressed, stamped envelope with a search fee per name and last known address, or social security number of deceased, or date of death. Please refer to the fee schedule on our website for search name costs. Please mail your request to: Clerk of Court, Probate Division, PO Box 700, Fort Pierce, FL 34954. 

Q. Can you tell me if there is a case open on my father, or a friend, etc

Access to a decedent's safe deposit box is governed by Florida Statute 655.935, Florida Statute 733,6065, and Probate Rule 5.3425. Because of the complexities of probate law, it is recommended that one seeking to access a decedent's safe deposit box confer with an attorney licensed to practice in Florida. 

Q. How do I get into a deceased person's safe deposit box/p>

Probate forms are available on our Forms page or in our Family Relations Department in the Clerk’s main office, 2nd floor. Probate forms are also available at the Rupert J. Smith Law Library, 221 S. Indian River Drive, Fort Pierce, FL 34950. Their phone number is 772-462-2370.

Q. Where can I obtain probate forms

An Ancillary Formal Administration would go into the e-portal as a Formal Administration. Only your pleadings would say Ancillary, not the computer or the e-portal. 

Q. (Attorneys Only) If I am e-filing an Ancillary Formal Administration, what would I classify it as in the e-portal

An Ancillary Summary Administration would go into the e-portal as a Summary Administration over $1000. Only your pleadings would say Ancillary, not the computer or the e-portal. 

Q. (Attorneys Only) If I am e-filing an Ancillary Summary Administration, what would I classify it as in the e-portal