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Frequently Asked Questions

Florida Probate FAQ:


What is probate?

Probate is a court-supervised process for identifying and gathering the decedent’s assets; paying taxes, claims and expenses; and distributing assets to beneficiaries. 


Why is probate necessary?

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. 


What happens to probate assets if there is no will?

If there is a surviving spouse and no lineal descendants, the surviving spouse takes all. If there is a surviving spouse and lineal descendants, the surviving spouse takes the first 20,000 of the probate estate plus one-half of the rest of the probate and the lineal descendant(s) share the remaining half.  If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is broken into shares. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.


What are probate assets?

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. 


How long does probate take?

The probate process can take between 6-9 months after the will and petition are filed. Under certain circumstances, The process can take longer depending on the complexity of the case.

Florida Guardianship FAQ:


What is Guardianship?

Guardianship is the appointment of a person by the court to exercise control over part, or all, or another individual's person and/or property. 


Who can serve as a Guardian of the Ward?

The court may appoint any person who is fit and qualified to act as guardian, whether related to the ward or not. However, the court will give preference to a person related by blood or marriage to the ward. 


What is the difference between a plenary Guardianship and limited Guardianship?

In a plenary (full) Guardianship, all delegable rights are delegated to the Guardian and no rights have been reserved to the ward. In a limited Guardianship, some delegable rights are delegated to the guardian while the ward reserves other rights. For example, in a limited guardianship the ward may reserve the right to make decisions about where they want to live but may lose the right to marry or enter into contracts.


Who may file a petition to determine incapacity?

A petition to determine incapacity of a person may be executed by an adult person. 


What types of Guardianship are there?

There are two types of Guardianship: Guardianship of the property and Guardianship of the person. Many times, both types are required to protect the ward. However, in some cases only one may be necessary

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