The Probate Office handles court-supervised proceedings for establishment of wills, settlement of decedent's estates, supervision of guardianships for minors and incapacitated persons, and filing of mental health cases. The Probate Office stores wills that have been deposited with them after the death of the decedent.
A Will is an instrument by which a person makes a disposition of his property to take effect upon his death. The original last Will should be filed with the Clerk's Office within 10 days from the date the holder of the Will was notified of the death of the decedent. An attorney is not needed to file a Will for safekeeping. An attorney may be consulted to determine if there is a necessity for probate proceedings.
Florida Probate Rules require a Florida licensed attorney to represent the personal representative of the estate in almost all instances. An estate is testate if there is a will or intestate if the decedent did not have a will. The will usually names the personal representative to administer the estate. A petition may be filed seeking the appointment of a qualified personal representative. There are three types of administration of a decedent's estate.
- FORMAL ADMINISTRATION is used when the assets include real estate or other assets that exceed $75,000.00 in value. It is necessary to appoint a personal representative to administer the estate.
- SUMMARY ADMINISTRATION is used if the assets that are solely in the decedent's name do not exceed $75,000.00. This procedure is also used if the decedent has been dead for more than two (2) years or there is a provision for payment of creditors' claims.
- DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION is a non-administrative proceeding. This proceeding is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.
A guardianship is a legal proceeding in the Circuit Courts of Florida in which a guardian exercises the legal rights of an incapacitated person or a minor child. A guardian is an individual or institution, such as a bank trust department, appointed by the court to care for an incapacitated person or a minor child. All guardianship matters in the State of Florida require an attorney (Rule 5.030).
Guardianships for an adult person are filed when it is believed that a person is not mentally capable of taking care of himself/herself. Mental Health appoints a committee to evaluate the person and make their report to the court. Guardians can be appointed as guardian of the person only, property only, or person and property. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward examined and can restore some or all of the person's rights.
Guardianships for minors are filed when the minor child has inherited money or has property in excess of $15,000.00. A guardian of the property is all that is needed if the minor child's parents are living. If the minor child's parents are deceased or unable to be appointed guardians, he/she may need a guardian of the person and property.
Persons who are mentally ill and refuse to seek treatment and are a danger to themselves or others may be court ordered for evaluation and treatment or emergency pickup, if necessary, under the provision of the Baker Act when the licensed service provider determines the criteria. The agency files the petition and assists with the preparation and filing of emergency petitions.
Baker Act records are confidential.
The Marchman Act provides involuntary assessment and treatment, if necessary, for substance abuse when the licensed service provider determines the criteria. The agency assists with the preparation of the petition which is filed and processed in the Probate Division.
Substance abuse records are confidential.