What triggers probate in Florida

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January 4, 2024

Introduction: The probate process in Florida is initiated following the death of an individual and involves a series of critical steps to trigger the process. This guide aims to delve into the specifics of what triggers the probate process in Florida, focusing on practical considerations before filing, such as handling the decedent’s remains, burial rights, and funeral expenses. Understanding these initial steps is essential for a smooth transition into the formal probate process.

§ 1.2. IMMEDIATE PRACTICAL CONSIDERATIONS: After a person's death in Florida, families must address several immediate practical concerns that precede the probate process. These concerns range from funeral arrangements to handling the decedent's personal affairs and are often emotionally and logistically challenging for grieving families.

A. Rights To The Body And To Control Burial: The right to control the disposition of a deceased individual's body is a primary concern following death. These rights, often outlined in legal documents or left to the discretion of next of kin, set the stage for how the decedent's remains are handled, influencing subsequent probate procedures.

1. In General: Florida law generally gives the next of kin the right to make decisions regarding the body and burial of the deceased. However, this can sometimes lead to disputes, especially if the decedent's wishes are not clearly documented.

2. Control By Decedent: If the deceased left specific instructions for their burial or handling of their body, these wishes take precedence and must be respected. This control can be exerted through a will, advance directive, or other legal means.

3. Burial And Removal Permits And Death Certificates: Obtaining burial and removal permits, along with the death certificate, are necessary legal steps. These documents are essential for various legal and administrative purposes, including the initiation of the probate process.

4. Selection Of Casket And Burial Plot: Decisions regarding the casket and burial plot, whether made by the next of kin or as per the decedent’s wishes, can have financial implications. These choices often reflect the decedent’s personal preferences or religious beliefs and are among the first tasks to be addressed following death.

5. Donation Of Body Or Parts Of Body: In cases where the decedent chooses to donate their body or organs, specific legal and medical procedures must be followed. This noble choice can significantly impact traditional burial plans and needs to be coordinated with medical professionals and donation organizations.

6. Autopsies: An autopsy may be necessary or requested to determine the cause of death, especially in cases of unexpected or unexplained deaths. The outcome of an autopsy can also have legal implications, particularly if the death was due to unnatural causes.

7. Authorization For Cremation: Cremation, as an alternative to traditional burial, requires express authorization, either from the decedent’s pre-stated wishes or from the next of kin. This process is regulated by state laws to ensure respect and dignity for the deceased.

8. Duties Of Medical Examiner: In Florida, the involvement of a medical examiner is mandated in certain types of deaths. The medical examiner’s findings can sometimes influence the course of legal proceedings, including probate.

9. Burial Insurance And Contracts: Pre-arranged burial insurance and contracts can alleviate the immediate financial burden on the family or estate. Such arrangements can streamline the burial process and ensure that the decedent's wishes are honored.

B. Funeral Expenses: Funeral expenses are critical considerations that can affect the estate's financial standing. These costs are typically the first debts addressed in probate and can shape how the estate is managed in its early stages.

1. Limit On Priority Of Payment: Funeral expenses are prioritized for payment from the estate in Florida, but they are subject to statutory limits. Understanding these limits helps manage the estate’s finances more effectively.

2. Test Of Reasonableness: The reasonableness of funeral expenses is subject to scrutiny. This ensures that the costs incurred are in line with the estate's capacity and do not unduly burden the estate’s financial resources.

3. Property Not Subject To Claims: Certain assets within the estate may be exempt from being used to pay funeral expenses. Identifying these exemptions early in the probate process is important for protecting specific assets from claims.

4. Federal Estate Tax Deduction: Funeral expenses can potentially reduce the estate's federal tax liability. This deduction can be significant, especially in larger estates, and should be carefully calculated and documented.

5. Expense Of Shipping Body When No Provision In Will: In cases where there is no provision for the expense of shipping the body in the will, the cost usually falls to the estate. This situation underscores the importance of detailed estate planning, including provisions for such eventualities.

6. Need For Written Claim; Reimbursement Of Amounts Paid: For funeral expenses paid out of pocket, a written claim for reimbursement is typically required. This requirement ensures that all funeral expenses are properly accounted for and reimbursed in accordance with legal standards.

Conclusion: Addressing the immediate practical considerations following a death is a crucial first step in the probate process in Florida. Understanding these early responsibilities helps ensure that the transition into formal probate is as smooth and efficient as possible.

In preparing for Probate: Families and executors should approach these early steps with care and attention to detail. Consulting with legal professionals during this phase can provide valuable guidance and ensure that all actions taken are in accordance with Florida law and the decedent's final wishes.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.