Probate in Florida: Who should take the first step?

Between 2021 and 2022, there were over 77,000 probate actions filed in the state of Florida. I want to help you understand who should start the probate process. So, in order to make this determination, you need to ask a few questions.  

Question number one, is the person or was the person who died domiciled in the state of Florida or did they own real property in the state of Florida? If so, move on because then you need to consider Florida as a possible location for starting a probate proceeding. Question number two, is a probate proceeding even necessary now? Check out our other content to make this determination. Question number three, am I the right person to start the probate process? This is governed by statute in the state of Florida, in particular Florida Statute section 733.301, that statute talks about the preference, the preferred, who is preferred or has the best position to be appointed what’s called personal representative. That is, the person who administers the affairs of the estate. 

Now, you may not be familiar with the term personal representative. That’s what we use in the state of Florida. If you’re from other states or television or the Internet, you may see the term executor. Those terms are used interchangeably, but technically in the state of Florida, the term for the person administering the estate, the probate, is the personal representative. 

In looking at the statute, the first question you have to determine is, is there a Will? If there is a Will, a valid Will, the person is said to have died, testate with a Will. In that circumstance, the person or persons nominated in the Will would have the preference to be appointed, provided they otherwise qualified to serve as personal representative. The next would be that person or persons who are elected or selected by the majority of the beneficiaries or devisees under the terms of the Will. For example, the Will leaves things to say, three children, two of those children may select one person to be the person representative in the event that the nominated person representative is not selected. Also, under the terms of this statute, any beneficiary or devisee named in the Will can petition to be chosen or appointed by the Court to be the person representative.  

What if there’s not a Will, under the law that’s called to die intestate. Same word as testate, but add IN to the front end, intestate dying without a Will. The Statute provides a preference in that circumstance to the surviving spouse, if there is one. Next, it goes to who the majority of heirs select to be the person representative. That is, again, so you have five beneficiaries, who three of them select to be the personal representative would have the preference for the appointment. And lastly, any heir or the heir who is in the nearest degree to the person who died, they would have the next preference to serve as personal representative and bring the probate or start the probate process.  

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