What is Probate?
The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. Probate provides a mechanism for interested persons [heirs or claimants for example] to open a decedent’s estate to distribute Florida assets, pay claims, and/or to defend lawsuits or to bring a
lawsuit on behalf of the decedent’s survivors [Ch. 768]. The Florida Statutes [Code] and the Florida Probate Rules set out the process that is to occur in the administration, with applicable time periods, and the court oversees the process.
Florida law establishes several types of probate administrations:
Formal Administration, where a personal representative is appointed [Ch. 733].
Summary Administration, for estates where a personal representative is not needed and meeting particular criteria [Ch. 735].
Disposition of Personal Property Without Administration, where only certain exempt property qualifies for transfer [Ch. 735].
Miscellaneous Stand-alone Homestead Petitions. [See https://circuit8.org/self-help/forms-and-checklists/ forms and checklists for attorneys]
The most common question asked by heirs is whether they need an attorney to probate an estate.
The question of need, however, is a personal one. What must be considered is whether an attorney is required, and in probate, it depends.
Florida Probate Rule 5.030 states that “every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.” Therefore, when there is another interested person in the proceedings, then an
attorney is required by law to represent the personal representative. If there is no other interested person, then the personal representative may administer the estate pro se (unrepresented by counsel). If the estate is not opened as a formal administration, meaning there is no appointment of a personal representative, then there is no similar attorney requirement enumerated in the code. However, neither a clerk’s offices nor the judge’s staff can provide legal assistance in administering the estate to a petitioner.
Florida’s Probate Code [Chapters 731-735] www.flsenate.gov/Laws/Statutes
Florida’s Guardianship Code [Chapter 744, and see also Chapter 393]
Florida’s Trust Code [Chapter 736] www.flsenate.gov/Laws/Statutes
Florida’s Prudent Investor Rule [Section 518.11, Fla. Stat.] www.flsenate.gov/Laws/Statutes
Florida’s Principal an Income Act [Chapter 738] www.flsenate.gov/Laws/Statutes
Florida’s Powers of Attorney and Similar Instrument Act [Chapter 709]
Florida Rules of Probate www.floridabar.org/rules/ctproc/
Florida Rules of Judicial Administration www.floridabar.org/rules/ctproc/
The Eighth Judicial Circuit’s Attorney Forms and Checklists www.circuit8.org/self-help/forms-and-checklists/