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Elder Law Q&A: What is Probate?

Elder Law Q&A: What is Probate?

Question: What is probate?

Answer: When someone dies, probate is the legal process for identifying one’s assets and liabilities and satisfying their creditors and beneficiaries.

Not all assets are required to go through probate. If something is jointly owned with rights of survivorship with someone else, has a designated pay on death beneficiary, or is in a trust, it is not a probate asset.

If a person dies without a will, he or she is said to be intestate, and the state statues governs the process and determine who the beneficiaries will be and what each should receive. If a person dies with a Last Will and Testament, he or she is said to have died testate. After the Will is admitted to court, it will determine who the beneficiaries will be and what each should receive.

Generally, a relative or friend will petition the court to open the probate proceeding and name an executor, also known as a Personal Representative in the state of Florida. The personal representative now has a job. He or she must provide an inventory of the deceased’s probate assets and their value as of the date of death. Then all reasonably ascertainable creditors must be given formal notice of the death and the time requirement for filing a claim with the court. The same information must be published in a newspaper once per week for two consecutive weeks to give general notice to any unknown creditors. The creditors then have a time limit in which to file claims with the court. In Florida, creditors have 90 days from the first date of publication in the newspaper, or 30 days from the date of personal service if that would extend beyond the 90 day period. Claims not filed with the court during this period are forever barred.

The personal representative is then responsible for paying all creditors who filed claims with the court if there are sufficient assets. If the debts exceed the assets, the state statutes determine the priority of payments to creditors. After debts have been satisfied, the personal representative provides a final accounting to the beneficiaries and distributes remaining assets to the beneficiaries according to the provisions of the Will, or according to the state statues if there is no Will. At that point the court will issue an order closing the estate.


Losing a loved one or family member is a difficult and stressful experience for anyone. Going through probate can be challenging, but you don’t have to do it alone. If you would like more information on probate or if we can help you navigate the probate process, please contact Smith Law, PLLC at (850) 912-4141.

Smith Law, PLLC
Smith Law, PLLC.

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