What is a Probate Attorney?

A Florida probate lawyer guides clients through the complex legal process of settling an estate. These attorneys possess in-depth knowledge of probate law and are well-versed in the specific requirements of Florida’s probate courts.

Probate attorneys assist with critical tasks such as:

• Filing the necessary paperwork with the local probate court
• Notifying creditors about the death
• Inventorying and valuing the deceased’s assets
• Paying valid debts and taxes from the estate
• Distributing remaining assets to beneficiaries according to the will or state law

I’ve seen firsthand how valuable legal counsel can be when family members disagree about the distribution of assets, when the estate includes complex holdings like business interests or real property, or when there are questions about the will’s validity.

What Is a Probate Judge?

The probate judge is the court official responsible for overseeing all probate proceedings. This judge has the authority to:

• Validate wills
• Appoint personal representatives
• Resolve disputes between beneficiaries
• Approve the final distribution of assets
• Evaluate evidence, interpret the law, and make decisions when complications arise

In Florida, probate judges focus on ensuring the probate process follows state law and that the deceased person’s wishes are honored while protecting the rights of all parties involved.

The probate judge must give court approval at various stages of the process, particularly for major actions like the sale of real estate or the final distribution of assets to beneficiaries.

What is a Guardian?

When a person becomes unable to manage their own affairs due to incapacity, the court may appoint a guardian to manage their affairs on their behalf. This person becomes the legal decision-maker for the incapacitated adult. The guardian manages personal and financial matters, making decisions about healthcare, living arrangements, and finances.

What is a Power of Attorney?

Powers of attorney are legal documents that allow a person to designate someone to act on their behalf while they’re still alive. Unlike guardianship, which is court-appointed after incapacity, powers of attorney are created proactively as part of an estate plan. There are two main types:

• Financial power of attorney: Gives authority to manage financial matters
• Healthcare power of attorney: Grants authority to make medical decisions

These tools play a vital role in managing affairs before death or during incapacity and can sometimes help families avoid the need for court-supervised guardianship proceedings. If you’re planning for the future and want to make sure you control who makes your decisions and what happens to your assets, check out the 5 Essential Estate Planning Documents Everyone Needs.

What Is a Probate Bond?

A probate bond (also called an executor’s bond or fiduciary bond) is a type of insurance policy that protects the estate’s beneficiaries and creditors against mismanagement or dishonesty by the personal representative. The bond ensures that if the personal representative fails to handle the estate’s assets properly, the bonding company will compensate the estate for losses up to the bond amount.

In Florida, whether a bond is required depends on:

• Instructions in the will (some wills waive the bond requirement)
• The court’s discretion (the judge may decide not to require one)
• Agreements among beneficiaries (all beneficiaries may waive the bond requirement)

The cost of a probate bond is typically paid from the estate’s assets and is based on the total value of the estate. For personal representatives, obtaining a bond typically requires a credit check and may also require collateral.

What Is a Probate Sale?

A probate sale occurs when real estate or significant personal property from the deceased person’s estate must be sold during the probate process. This might happen to pay debts, divide assets among beneficiaries, or simply because no beneficiary wants the property.

Probate sales have distinct characteristics:

• They may require court approval, unless the Will grants authority to the personal representative to sell the property. 
• They follow specific legal procedures
• They often involve competitive bidding
• The personal representative collects and evaluates offers
• The property is typically sold “as-is.”

We find that the process for selling real estate in probate differs significantly from standard transactions. The court oversees the sale to ensure that the estate receives fair market value and that the transaction benefits the estate. 

What Is a Probate Listing?

A probate listing is a real estate property being sold through the probate process. These listings are unique because they may require court approval for the personal representative to sell the property, unless the sale of property is authorized in the decedent’s will.

For buyers, probate listings can sometimes offer opportunities to purchase property at competitive prices. However, they should be prepared for a different home buying process than with traditional sales, including potential waiting periods for court approval and limited opportunities to negotiate repairs.

Who has the authority to make decisions after someone has passed away?

If your loved one had a will, they likely named a personal representative (sometimes called an executor). This person has the legal authority to manage funeral arrangements and the estate. If there is no will or if the will doesn’t specify, Florida law gives authority to the next of kin in a specific order, starting with the surviving spouse.

When is probate required, and when can it be avoided?

Probate is generally required when a person dies owning assets solely in their name. In Florida, these assets must go through probate to transfer ownership to the beneficiaries.

Assets that typically avoid probate include:

• Property held in joint tenancy with right of survivorship
• Assets with designated beneficiaries, such as life insurance proceeds, retirement accounts, and transfer-on-death accounts
• Assets held in a living trust
• Bank accounts with payable-on-death designations
• In Florida, homestead property passes to heirs

Creating a comprehensive estate plan that utilizes these probate-avoidance strategies can save your loved ones significant time, money, and stress after your passing.

How long does the probate process typically take?

The duration of probate proceedings varies widely depending on several factors:

• Estate size and complexity
• Whether the will is contested
• Court caseload in your local probate court
• Efficiency of the personal representative and attorneys

Even straightforward matters take time due to mandatory waiting periods for creditors to file claims. More complex estates naturally take longer, especially if litigation develops.

What Types of Assets Are Subject to Probate?

Not all assets go through probate. Understanding which assets require probate and which don’t can help you plan more effectively.

Assets typically subject to probate include:

• Real estate titled solely in the deceased’s name
• Bank accounts held individually without payable-on-death designations
• Vehicles titled only in the deceased’s name
• Personal belongings, collections, jewelry, and household items
• Business interests not structured to transfer automatically upon death

Assets that generally bypass probate include:

• Property held in joint tenancy with right of survivorship
• Bank accounts with payable-on-death (POD) designations
• Investment accounts with transfer-on-death (TOD) designations
• Life insurance policies with named beneficiaries
• Retirement accounts (401(k)s, IRAs) with designated beneficiaries
• Assets held in a living trust
• Assets with beneficiary designations that weren’t left to “the estate”

This distinction underscores the importance of thoughtful estate planning. By structuring your assets properly, you can significantly reduce what passes through probate.

What happens if there is no will?

When a person dies without a valid will, they are said to have died “intestate.” In these cases, Florida’s intestate succession laws determine who inherits the deceased’s property.

Florida’s intestate distribution typically follows this pattern:

• If the deceased person has a surviving spouse and no descendants, the spouse inherits everything
• If there are descendants from the deceased and spouse together, and no other descendants, the spouse gets everything
• If the deceased spouse has descendants from another relationship, the surviving spouse gets half, and the deceased’s descendants get half
• If there are descendants but no spouse, the descendants inherit everything
• If there is neither spouse nor descendants, the property goes to parents, then siblings, then more distant relatives

Without a will, the court also appoints an administrator (similar to an executor) based on priority relationships defined by state law. This person responsible for managing the estate may not be who the deceased would have chosen.

How does imminent death impact the probate process?

When death is imminent, families sometimes rush to create or update estate planning documents. While planning is important, documents created under duress or when a person’s capacity is questionable may be vulnerable to challenges during probate.

The best approach is proactive estate planning well before health deteriorates. But if you’re facing imminent death without planning, consulting with a probate attorney immediately can help determine what options remain available and how to implement them in a way that will withstand potential challenges.

For those supporting a loved one with terminal illness, focusing on gathering information about assets, accounts, and important documents can help smooth the eventual probate process, even if formal estate planning cannot be completed.