Do I need to hire a probate attorney?

Oct 8, 2020

Paul S. Labiner

Paul Labiner


Probably. Whether you need a probate attorney in Florida will depend largely on the type of probate process required in your circumstance. The probate process in Florida is not a singular thing. Instead, Florida generally has three probate processes that you must consider.

In turn, which type of probate will apply in your situation will depend to a large extent on the size of the estate in question and the probate avoidance strategies implemented by the decedent.

Formal Probate Administration

This is the full-blown probate process. There are a litany of particulars and smaller steps, but in broad strokes the formal probate process follows this basic course of action:

  • A court appoints the personal representative,
  • Creditors are given a required 90-day notice,
  • Any creditor’s claims are paid from the estate, and
  • The remaining assets and property are distributed to the heirs and beneficiaries
  • The estate is closed.

Any estate over $75,000, any estate with debts, and estates with unknown assets are required to go through the formal probate process. If your situation meets the criteria for the formal probate process, you will absolutely need to hire a probate attorney to assist with the administration of the probate estate.

Disposition without Administration

This process is often compared with “small estate provisions” that some other states have, but the analogy is not quite right. While it does not technically involve the probate process, it does involve the Florida court system.

Disposition with Administration is only available in specific situations and to some very small estates. Typically, such cases involve petitions to the probate court for access to assets (e.g. bank account) to pay outstanding funeral bills or medical expenses or to reimburse someone for paying for such expenses out of pocket. The petitions must be made within 60 days of the person’s death.

You probably will not need to hire a probate attorney for the disposition without administration process.

Summary Administration

The third probate process is a simplified version of the formal process, but it is only available in very limited situations where all four of the following criteria are met:

  1. Less than $75,000 in total assets,
  2. All the beneficiaries and heirs consent to the petition,
  3. The decedent has no outstanding debts, and
  4. All of the decedent’s assets are known (if an asset is discovered in the future, you have to go back to court again!)

You may not need a probate attorney to help with summary probate administration, but I would recommend you have one. Over the years I have seen many families try to do it on their own, only to have the court reject the summary paperwork they filed due to deficiencies.

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