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How do we file for Probate without an attorney in Florida?

Miami, FL |
Filed under: Probate Formal probate

My wife passed away, and she had no will. Now I need to go through the probate process but I can't afford an attorney. Can I file myself to be granted probate in Miami?

Attorney Answers 4

  1. Best answer

    You don't state why you need to probate your late wife's estate in Florida. I agree with Attorney Perlin that you will need an attorney for a full blown formal administration of your late wife's estate. But just guessing from what you said, if you don't have enough money to hire an attorney, what could be in the estate that needs to be probated?

    One of the main reasons to probate an estate is when there is real property solely in the name of the deceased at the time of death. Most husbands and wives own their real property jointly as tenants by the entireties. That means that full title to the property transfers to the surviving spouse automatically upon death of the other spouse. No probate, lawyers or judges necessary. You just have to record a short form death certificate in the public records along with a non-tax affidavit. When the property is in the name of only the deceased spouse, then the probate is necessary to change the name on the deed recorded in the public record from the deceased to the heir or heirs of the deceased. Since the deceased can no longer sign a deed, that's why you need a court.

    The other reason one would want to probate an estate is because the deceased had bank accounts and/or stocks and annuities worth more than $75,000 in the deceased spouse's name alone. The surviving spouse needs court approvals and orders telling the banks and investment houses that he has the right to access them. But here again, most spouses own such accounts jointly and the same rule applies: when one spouse dies the sole title automatically transfers to the survivor. No lawyers, judges or courts necessary.

    Now, if you have accounts in excess of $75,000 which you need a probate to access, then you will be able to afford an attorney.

    The last scenario is when there are bank accounts in the deceased spouse's name alone but less than $75,000 (i.e., all personal property is less than $75,000). Then, as attorney Perlin says, you could file a Summary Administration. It's not as complicated as a formal probate and a savvy layman might be able to navigate his way through it, but he might be able to afford an attorney also if there is sufficient funds in the accounts to pay a reasonable fee, one which would not be as much as a formal administration.

    I hope this has been of some help. It has not been offered as legal advice, just instruction on the law. I do not know enough about your situation to give you advice and I have not created an attorney client relationship with you. You need to consult with an attorney. Many will give you a free consultation.

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  2. Unfortunately you cannot open an estate by yourself. You will need to hire an attorney to file for probate in Miami.

    If you need to take the estate through probate it must be because there are assets in the name of your wife alone.

    If there are assets, it would seem that the attorney could be paid from the assets that are subject to probate.

    If there are minimal assets (less than $75,000) you could hire an attorney to do a Summary Administration. A Summary Administration is not as time consuming and is less expensive. The Summary Administration is a simple version of the probate process. The Summary Administration is generally done when the estate has a lower value than the specified amount according to the statutes of your jurisdiction and also when there are no properties involved.

  3. I agree with the previous responses in part. The only comment I disagree with is that technically you can file for probate, if needed, without an attorney if, and only if, you are the only beneficiary. A word of caution, however, is that even if you are able to file probate without an attorney, courts frown upon that practice and often people make mistakes and end up hiring an attorney due to the complexity involved in administering an estate. If your wife had children with you or through a previous marriage, then an attorney is necessary by law. Keep in mind, as the previous response mentions, not all property is subject to probate. For instance if you owned a house together as Husband and Wife or filed for homestead, the house will not need to go through probate. Feel free to contact me with any other questions you may have or to discuss your situation in further detail.

    Douglas R. Coenson, Esq.
    (561) 315-2120
    Jupiter, FL

  4. The Florida Probate Rules require the use of an attorney in most actions in the probate court. If you are unable to afford an attorney, you may wish to contact the Miami-Dade County Bar Association Referral Service. There may be attorneys in that county who may be able to assist you on a reduced fee or pro bono basis.

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