Probate is the term used to describe the legal process through the appropriate Court for disposing of the assets and debts of a deceased person as required by law. In most cases, the execution of a Will does not eliminate the need for probate; the Will simply designates the desires of the deceased person concerning the disposition of his or her probate assets. If the Will has been properly drafted and executed, the decedent's desires will be followed by the Court. If there are assets to be disposed of, and the deceased person did not engage in estate planning, probate is required to dispose of the assets according to law.
In most cases, an attorney must be employed to probate an estate. The Florida Statutes set out a method to compute the compensation to the attorney for representation in probate. However, the Personal Representative of the estate can enter into an agreement for reasonable compensation to the attorney which is different from the statutory amount.
In Florida, the Personal Representative is also entitled to reasonable compensation for services to the Estate of the deceased person, unless that right to compensation is properly waived under the terms of the Will.
Florida probate proceedings must be concluded within one (1) year. In some circumstances, the Court will extend that time period. Potential creditors must be notified of the death of the deceased person. If the estate assets are sufficient to pay all creditors, the creditors must be paid before all of the assets of the estate can be distributed to beneficiaries.
The probate process provides some protections to the beneficiaries because the Court oversees the process; the Personal Representative is required to comply with the law. The probate process also insures that the terms of the decedent's Will, if any, will be fully met.
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