By Kaytlin M. Keen and Blakely S. Moore
When someone passes away, their estate (i.e., their property, assets, and debts) need to be distributed according to the deceased person’s (known as a “decedent”) wishes. Often this means opening a probate. There are two primary ways this can happen: through testate and intestate proceedings.
When a person dies and leaves behind a valid Last Will and Testament that is submitted to the Florida probate court, the estate is considered “testate.” This means the deceased person’s wishes are legally documented in a will. If no Will exists, the estate is considered “intestate,” and Florida law will determine how the estate is distributed.
Understanding a Testate Estate
A testate estate is an estate where the decedent has created and executed a legally valid will before their death. The Will outlines how the decedent wants their assets distributed, who will manage the estate, and other important instructions regarding their final wishes. As put by the Third District Court of Appeal in Taulbee v. Kozel, “In testate estates, the Code provides: ‘The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions.’”
However, for any of this to apply, the will must be valid. The process of administering a testate estate involves “proving” the Will in probate court, which includes validating the Will and ensuring that it meets all legal requirements. For a Will to be valid in Florida, it must meet several criteria pursuant to Section 732.502, Florida Statutes, including:
- Written: The Will must be in writing. Florida recognizes both handwritten and typed Wills but will not recognize an oral Will.
- Signed & Witnessed: The Will must be signed by the decedent in the presence of two witnesses, who must also sign the Will in front of each other and the decedent. The witnesses must be at least 18 years old and should not be named as beneficiaries in the Will.
- Capacity: The decedent must have been mentally competent when they made the Will, meaning they understood the nature of their actions and the distribution of their assets.
The Probate Process for a Testate Estate in Florida
Once the decedent passes away, the Will is typically filed with the probate court in the county where the decedent resided. The process of administering a testate estate in Florida is then handled through probate, which is a legal process that validates the Will, ensures debts are paid, and distributes assets to the beneficiaries.
The person handling the probate in a testate estate is called the personal representative, also known as the executor or administrator. The personal representative is typically nominated in the Will and is responsible for administering the estate according to the decedent’s wishes as expressed in the Will. See Section 731.201, Florida Statutes.
While each probate may vary, the following is an overview of the steps involved in a typical Florida probate process for a testate estate:
- Filing the Will: The personal representative files the Will with the probate court. If the personal representative has not yet been appointed, the court will oversee the appointment.
- Opening the Probate Estate: The court will officially open the probate estate and formally appoint the personal representative by providing the personal representative with Letters of Administration.
- Notifying Creditors and Beneficiaries: The personal representative must notify beneficiaries named in the Will and creditors of the decedent’s passing.
A “beneficiary” is a person or entity designated in the Will to receive a portion of the decedent’s estate. See Section 731.201, Florida Statutes.
A “creditor” of an estate is a person or entity that holds a claim against the decedent’s estate. The Florida Probate Code requires that creditors file their claims within specific time frames to be considered valid. If a claim is not timely filed, it is generally barred unless the court grants an extension based on grounds such as fraud, estoppel, or insufficient notice.
- Paying Debts and Taxes: The personal representative must pay off the decedent’s outstanding debts and taxes, and address any creditor claims that are properly and timely raised. This includes paying final expenses, such as funeral costs, and filing the decedent’s final income tax return.
- Distributing Assets: Once the debts and taxes are settled, the personal representative can distribute the remaining assets to the beneficiaries according to the instructions laid out in the Will.
- Closing the Estate: After all assets have been distributed and the necessary paperwork completed and filed, the probate case is closed and the personal representative is discharged by the court.
What if There Is No Will?
In cases where the decedent did not leave behind a Will (or the original Will has been lost or destroyed), the estate is considered intestate. This means the estate will be distributed according to Florida’s intestacy laws, which are statutory guidelines that determine how property should be divided when there’s no will.
Conclusion
A testate estate in Florida refers to an estate where the decedent has a valid Will in place. The probate process ensures that the decedent’s assets are distributed according to the terms of their Will.
Having a valid Will in place is a critical part of estate planning, as it provides clarity and helps avoid complications after death. If you are unsure about creating a Will or navigating the probate process in Florida, it is always a good idea to consult with an experienced estate planning attorney to ensure that your wishes are honored and your loved ones are cared for according to your plan.