Probate and Guardianship

Probate

Probate is the legal process through which the Courts monitor the assets of a deceased person's estate to make sure that debts are paid and proper distribution is made to the heirs or beneficiaries as the Last Will and Testament provides.

Pursuant to Florida Statute 732.901 Wills are filed only after a person's death. When a person dies, the custodian of the original Last Will and Testament must deposit the Will with the Probate Department of the Clerk's Office within ten (10) days of the person's death.

A will is a document executed by a person which disposes of his or her property after death. It generally names a personal representative to administer the estate. The custodian of the will must supply the person's date of death or the person's Social Security number to the Clerk upon deposit of the will.

An attorney is not necessary to file the will with the Clerk of the Circuit Court. However, you may want to contact an attorney before filing the will to determine whether Probate proceedings will be necessary.

A Probate proceeding is initiated with the filing of a Petition by the person asking to be appointed personal representative. The appointed representative will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.

There are several basic types of proceeding for administering a deceased person's estate. An example of those may include:

Disposition of Personal Property without Administration: The disposition is filed to request release of assets of the deceased to the person who paid the final expenses, for example, funeral expenses, recent medical bills, etc. This procedure may be accomplished with the filing of a formal petition.
Summary Administration: Summary administration may be administered when the value of the entire estate subject to administration does not exceed $75,000.
Formal Administration: This type of administration is used when there are considerable assets and it is necessary to appoint a representative to act on behalf of the estate. The capacity in which the representative will act is determined by the Court at the time of appointment and letters of administration will be issued to the representative so that he or she may complete the necessary administration of the estate.

Guardianship - Incapacity

Guardianship is a legal procedure to protect the personal and property rights of an incapacitated person by having the Court appoint a guardian. There are various types of guardianship. An attorney can assist you in determining what type of guardianship, if any, is necessary. Florida law does not allow you to file a guardianship without an attorney to represent you.

A guardian is an individual or an institution, such as a bank trust department, that is appointed by the Court to care for an incapacitated person, referred to as a 'ward', or for the ward's assets.

Any adult may file a petition to determine another person's incapacity, citing the factual information upon which they base their belief that the person is incapacitated. The Court then appoints a committee of three (3) professionals to examine the person and report their findings to the Court. The Court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee determines that the alleged incapacitated person is not incapacitated in any way, the Court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.

Any adult resident of Florida can serve as guardian. A close relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Institutions such as a bank trust department, a non-profit religious or charitable corporation, or a public guardian can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the Court. In addition, the guardian must obtain Court approval for certain financial transactions. The guardian of the ward's person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the Court every year a detailed plan for the ward's care.

Guardians must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the Court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

Guardianship - Minors

A child's parents are the child's natural guardians and in general may act for the child. In circumstances where the parents die or become incapacitated or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the Court must appoint a guardian. Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a guardian of the child's person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary.

12th Judicial Circuit

Interpreters - http://www.jud12.flcourts.org/Programs/Court-Interpreters