Florida Probate Process: Opening the Estate

The first phase of Florida probate process is opening the estate.  This consists of taking the preliminary steps, hiring the Florida probate attorney, and making the initial filings with the court.

Prior to Probate

The duties and powers of the personal representative begin with the grant of letters of administration, but the powers can relate back in time to prior acts that are beneficial to the estate.   There will be things to do before the Florida probate process starts that the person named personal representative should be taking care of.  These tasks include:

1. Take measures to protect assets. If there is a possibility of damage to the decedent’s property between death and the granting of letters of administration, a court can appoint a curator to take charge of the assets until letters are granted.    But in many cases, a friend or family member will take action and bypass this formality.  These actions can be later ratified by the PR if there are beneficial to the estate.
2. Hiring the probate attorney. A personal representative must be represented by a Florida probate attorney unless (1) the personal representative is the only person with an interest in the estate or (2) the PR is an attorney admitted to practice in Florida.  Since the attorney will need to be involved, you should consult with the attorney in the initial stages of the Florida probate process.
3. Planning. A personal representative should begin to get a feel for the size and nature of the decedent’s assets.  Start by making a list of the assets, including their location, value, and how they are titled.  Of course, knowing whether there is a valid Last Will and Testament is also important. This information will form the basis of your decisions regarding how (or if) to deal with probate under Florida law.

Opening the Estate

Once the attorney has been hired and all preliminary steps have been taken, it’s time to open the estate.  This requires several steps:

1. Petition the court to open the estate. The probate attorney will prepare a document called a petition to file with the court to open the estate.  This petition will ask the probate court to recognize the validity of the will, if any, and officially appoint the personal representative to act on behalf of the estate.
2. File proof of decedent’s death. For formal administration and ancillary proceedings, the proof must be filed within three months of the date of first publication of the notice to creditors.  For summary administration and disposition without administration, the proof must be filed before the entry of administration.
3. File oath of office. This is usually in the form of a notarized, sworn written statement.
4. Designate resident agent.  A resident agent receives service of process or notice on the behalf of the personal representative.
5. Furnish bond. Generally, a personal representative is required to furnish a bond, though this requirement can be waived in the will by the testator, or by the court.
6. Serve notice of administration. Notice must be served on the decedent’s surviving spouse, beneficiaries, trustees, and anyone who may be entitled to exempt property.
7. Provide notice to creditors. The personal representative must publish in a newspaper a notice to creditors.

Related Resources

• Florida Probate Alternatives
• Florida Probate Administration
• Closing a Florida Probate Proceeding