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What is Formal Probate?


When an individual passes away in Florida having assets worth over $75,000, their estate will have to go through a court process known as “formal probate.”

Formal probate involves, among other things, notifying the decedent’s creditors of the individual’s passing to ensure that the assets are marshalled and inventoried and that creditors are paid from those assets so that distributions can then be made to the beneficiaries under the decedent’s will.

If a creditor does not file a claim with the probate court within 90 days after the notice to creditors is issued, they will lose their rights to seek payment from the estate for any outstanding debts.

Pursuant to Florida Statutes 733.2121, the decedent’s personal representative must promptly publish, usually in a local newspaper, a notice to creditors that contains the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative’s attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the court during those first 90 days or be forever barred.

Additionally, the personal representative must promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and must promptly serve a copy of the notice on those creditors.

Diligently satisfying the creditor notice requirements of Florida law are important because the formal probate process cannot proceed, and distributions to heirs cannot be made, until any outstanding debts have been paid to creditors or those creditors lose their right to pursue any such claims because they failed to file their claims with the probate court in a timely manner.

As an estate planning attorney here in Southwest Florida, I see it as one of my core responsibilities to assist people who are dealing with the loss of a loved one. During such a difficult time, my goal is to provide clarity, comfort, and peace of mind to those left behind. If you have recently lost a loved one and have questions about what to do and how matters should be handled, please give Southwest Florida Estate Planning, PLLC a call at (239) 216-4107 or fill out our online form. We look forward to assisting you.