Whenever someone has died with property in their name (the decedent’s property), a probate is necessary in order to transfer that property to the proper beneficiaries. If the person had a will, then the original will must be admitted to probate. This is done by filing a petition with the local circuit court. The will must be signed by the testator or testatrix, witnessed by two witnesses, and notarized in order to be admitted without further steps. There is a lot that can happen here. First, the will may not have been properly executed. The will may have been witnessed by only one person, which means it is void. The will may not be notarized, which means that we have to find one of the actual witnesses to the will. The will may have been procured by undue influence, or the testator may have lacked capacity or may have written terms in the will that make no sense. Generally, if the will is valid then the court must appoint the personal representative named in the will.
If the decedent dies without a will, then Florida law dictates who the beneficiaries are. Further, Florida law dictates who has priority to be appointed as personal representative. If there is no will, then it is more likely there could be a conflict over who the personal representative will be. The personal representative is the person who controls the administration process and is entitled to a fee of 3% of the first million of assets of the decedent’s estate. The fee decreases as the size of the estate increases.