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What Is the Process for Recording a Will in Florida?

When a loved one passes away, there are many different steps that must be taken in order to move forward. As a surviving family member, it can be very difficult to figure out which of these steps you are responsible for. There are many details to take care of in the immediate aftermath of a death, such as determining funeral plans and whether or not funds existed to help pay for burial or cremation. 

One of the early steps that must be taken is to file a copy of the deceased’s will in Florida court if the will exists. This is often a challenge for surviving family members who may not know if there is a will in existence or where that will is stored. Admitting a will to the probate court, however, is critical for allowing the newly appointed executor to take legal action on behalf of the estate. The executor also referred to as the personal representative, is the individual who has authority to do things like gather up all of the assets in the estate, notify creditors about the passing of the deceased person, and pay debts and taxes before distributing the remaining assets to beneficiaries. 

The executor does not receive the authority or ability to take these actions until the will has been admitted to probate court. When the will is admitted to the probate court, it is still possible for someone to file a will contest lawsuit. Will contest lawsuits or disputes are typically related to claims, such as fraud, coercion, or invalid documents. The court will do an initial review of the will after it has been submitted to the probate court, but interested parties and beneficiaries still retain the right to move forward with a will dispute or probate dispute lawsuit. In order for a will to be valid in Florida:

  •       The person must be at least 18 years old.
  •       The will must be in writing and signed by the person who created it.
  •       The signature of the person who created the will must be located at the end of the will.
  •       At least two witnesses must be present at the time of the signing, and they must also affix their signatures to the document.

When you locate a copy of the will, take it to probate court. A will should include information about who is appointed as the personal representative. If you are the person who has been named as a personal representative in the will, be prepared to bring a form of identification with you and to sign papers indicating that you will step in as an estate administrator. When you are approved by the courts, you will be able to take a variety of different actions related to administering the estate. Ultimately, you will be able to distribute any remaining assets to beneficiaries after debts and taxes have been paid. This also means that you will play an important role in communicating with beneficiaries during the entirety of the probate process. It is not always easy to serve as a personal representative, and many people who are newly appointed in this role choose to get legal representation from an experienced attorney. 

Since you can be held personally liable for any lawsuits filed against you due to improper or illegal actions, it is beneficial to get the confidence provided by working directly with a probate attorney. A probate lawyer can tell you more about what to expect and can help you tackle the big list of things to accomplish. The recording of the will in Florida is only the first step involved in a long probate process. If there are limited assets, it is likely that you may be able to close out probate in a matter of months. However, if complicated issues or probate disputes arise during the process, you may be involved in probate for well over a year. During this entire time, you will need to keep good records and be able to communicate with the court and beneficiaries as needed.

It’s also the case that probate can be extended if someone files a claim to contest the will since you’ll need to spend time and estate funds responding to that. 

What Does the Probate Administrator Do First?

Probate officially begins when the personal representative files the right documents with the probate court. This includes three important pieces of paper: a petition for administration, acceptance of their role as personal representative, and an order formally admitting the will to probate. When probate documents have been filed, the personal representative proceeds to the next phase of the case to notify the decedent's surviving beneficiary, spouse, trustees, and beneficiaries of any estate trusts, and any other people who may be entitled to the property in that probate administration. This should be filed in the county in which the deceased person lived at the time that they passed away. 

There are strict filing deadlines in place for lawsuits against the personal representative or the estate. Creditor claims can be blocked after three months beyond the first publication of the notice to creditors. The personal representative cannot be held liable for any claims that come forward two years after the death of a person living in Florida.

What About the Florida States Without a Will?

Recording a will to probate is impossible if a will cannot be located. However, probate administration still must be addressed, and this is handled through a process known as intestate. This can add complexities for beneficiaries and the personal representative but still requires that Florida law be followed in administering the estate. With a will, a person's individual wishes are taken into account per the valid document. However, with intestate, a portion of the estate will be assigned to state-named beneficiaries, and this must be followed to the letter. Conduct a thorough evaluation to see if you can find any copies of a will before moving forward with going to the probate court. Many personal representatives in Florida and elsewhere choose to hire an experienced probate lawyer to guide them through the process. This is also because personal representatives do face some level of liability for serving in this role. Having an attorney to help you from the moment that you open probate or record the will in Florida can give you peace of mind knowing that your interests have been protected. You will also have someone to turn to throughout these difficult situations.

What to Do if There's Already a Probate Dispute?

If a probate dispute has already emerged and you are either the beneficiary or the personal representative, you want to have the support of an experienced and dedicated lawyer to guide you through each step of the process. The right lawyer can answer your questions early on and help ensure that you have considered all possible issues. 

Minimizing the possibility of going to court is important, but it is equally important to have the right legal representation to support you in this process in the event that you have been named in a suit. A personal representative has a lot at stake to protect their reputation and any financial liabilities should they be convicted or accused of wrongdoing with the estate. Beneficiaries also have a stake in how the case shakes out. Schedule a consultation with a dedicated lawyer to get help with your next steps.

Where Can I Find a Will? 

It is not always easy to find a will created by a loved one after they have passed away. There are some immediate planning opportunities that need to occur, such as planning for cremation or burial, and these often take precedence over finding a will. If your loved one did not have a will, you still want to make an effort to attempt to find this document so that you can rule it out before going to the probate court. Sometimes, an estate planning lawyer for the deceased will have a copy of their will. Look for business cards for an estate planning firm in their home.

You can also look for safety deposit box keys, fireproof safes, and other folders where important documents are kept. These can also provide clues as to the will’s location. If a will cannot be found, however, probate must be opened. 

Can the Executor Do Things Before Being Appointed? 

The executor should be court-appointed before taking any legal action regarding closing someone’s estate. Hiring a probate lawyer can really help to outline all the tasks required and to help the executor get appointed. An executor has a legal responsibility to uphold the laws of the state in which they operate and to follow the rules related to probate. This person also has some level of liability in the event that they get accused of inappropriate actions. If you need more legal support around the process of recording a will in Florida, reach out to our legal team for help. 

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John Morgan