Probate and Estate Administration

Question 1

Probate

Answer 1

The proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent, or if there is no will, the proceeding in which the decedent’s heirs are judicially determined.

In Florida, the circuit courts have exclusive jurisdiction.

Question 2

When is a person presumed dead?

Answer 2

1. If she is absent from the place of her last known domicile for 5 continuous years, and
2. The absence is not satisfactorily explained after diligent search and inquiry.

Question 3

Arbitration

Answer 3

A provision in a will requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will, among the benes and PR is enforceable and presumed to require binding arbitration.

Question 4

Proof of wills

Answer 4

A will may be proved by the oath of one of the witnesses.

If no competent witness can be found, the PR or another person not interested in the will may testify that he believes the offered writing to be the decedent’s will.

A will may also be self-proving, if the witnesses have previously signed and sworn to an affidavit as to proper execution.

Question 5

Lost or destroyed wills

Answer 5

The exact terms of a lost or destroyed will may be established and offered for probate by any interested person.

The specific contents of the will must be proved by the testimony of 2 disinterested witnesses, or if a correct copy is provided, by 1 disinterested witness.

Question 6

Who is entitled to serve as PR for a testate decedent?

Answer 6

The order of preference for appointment as PR is:

1. The person nominated in the will,
2. The person selected by a majority in interest of persons entitled to the estate, and
3. A devisee.

In the absence of unforeseen circumstances that would have changed the testator’s decision, and unless the person is disqualified by statute, the court must issue letters testamentary to the person nominated in the will.

Question 7

Who is entitled to serve as PR for an intestate decedent?

Answer 7

The order of preference is:

1. The SS
2. The person selected by a majority in interest, and
3. The heir nearest in degree.

Question 8

Representation of minors and incapacitated persons

Answer 8

Where a controversy during administration may affect the interests of a minor or incapacitated person, that person’s interest may be represented by appointment of a guardian of the property, a guardian of the person, or a guardian ad litem.

In estate administration proceedings, orders binding trustees or living persons in interest can, by virtual representation, serve to bind trust benes or unborn or unascertained persons.