Do I Need a Probate Attorney in Florida?

Do I Need a Probate Attorney in Florida?

When a loved one passes away, it can be an emotional and stressful time. In addition to the grief, you may discover there are assets that need probate. Given the complexities of probate cases, the risks of errors, and the nuances of local court procedures, it is strongly recommended that you hire an experienced probate attorney. But are you legally required to hire an attorney?

That depends entirely on the type of probate proceeding you need to file. The appropriate probate process varies based on the types of assets left by the decedent. Other factors are the number of creditors, the number of beneficiaries, whether a valid will exists, and the potential for disputes among the heirs.

Below is an overview of the different types of probate proceedings in Florida and how an attorney can assist.

Formal Administration

When most people think of probate, they are thinking of Formal Administration. This process is required when the estate’s assets exceed $75,000 or when appointing a personal representative is necessary for a number of reasons. Formal Administration is governed by Chapter 733 of the Florida Statutes.

In this process, the court appoints a personal representative who is responsible for managing the estate, paying debts, and distributing assets to the rightful beneficiaries. The court oversees the process to ensure debts are satisfied and the estate is properly administered.

Under Florida Probate Rule 5.030(a), a personal representative must be represented by an attorney unless they are the sole interested person in the case. Even if you are the sole beneficiary, you are strongly encouraged to consult or retain legal counsel. A personal representative has a legal duty to the court, creditors, and other interested parties. Navigating this process alone can be difficult and risky.

Summary Administration

Summary Administration, governed by Section 735.201 of the Florida Statutes, is a simplified probate process. It can be used when the estate’s value does not exceed $75,000 (excluding exempt property), or if the decedent has been deceased for more than two years.

Unlike Formal Administration, no personal representative is appointed in Summary Administration, and therefore an attorney is not legally required. However, the process still involves filing legal documents, handling potential creditor claims, and following court procedures. Many find the process overwhelming and choose to hire an attorney for efficiency and peace of mind.

Disposition of Personal Property without Administration

If you paid for a loved one’s final expenses out of pocket, you may be eligible to file for Disposition of Personal Property without Administration—the simplest type of probate governed by Section 735.301.

This proceeding allows reimbursement for out-of-pocket funeral or final medical expenses. Expenses paid by prepaid funeral plans or insurance do not qualify. Courts typically require documentation, such as business receipts, to support your claim.

Eligible final expenses include:

• Funeral costs up to $6,000

• Medical expenses incurred within the last 60 days of the decedent’s life

  
  

Surviving spouses or children may also claim Exempt Property, which may include up to two vehicles and household items valued up to $20,000.

This option is limited in scope. If you’re attempting to transfer a home, real estate, or non-exempt property that exceeds the final expenses, or if there’s no qualifying reimbursement, your petition may be denied. You would then need to file a different type of proceeding and pay additional court fees.

Disposition without Administration of Intestate Property in Small Estates

This narrow proceeding applies only if:

• The decedent died intestate (without a will),

• Has been deceased for at least one year,

• The petitioner is a direct lineal heir,

• And the estate includes only certain exempt property and non-exempt personal property up to $10,000.

Do You Need an Attorney?

You are not required to hire an attorney for:

• Disposition of Personal Property without Administration

• Disposition without Administration of Intestate Property in Small Estates

• Summary Administration

  
  

Many Florida courts offer free or low-cost forms and assistance for these types of filings. Check with your local court for availability.

However, even in these simplified proceedings, an attorney can be extremely helpful in:

• Ensuring your case qualifies

• Avoiding common mistakes

• Reducing delays and rejections

Call for a free consultation.

We’re here to help you navigate the probate process with compassion and confidence.