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Probate
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Probate is the legal process through which a deceased person's
assets are distributed to the heirs or beneficiaries, per the wishes
of the deceased as stated in The Last Will and Testament or if there
is no will, according to Florida Law. The Court oversees the estate
to ensure that all debts are paid and assets are properly
distributed.
Whether or not an estate is required to go through Probate depends
on the assets that the decedent owned at the time of his or her
death. Probate is needed when a court order is required to transfer
ownership of the deceased's properties or to distribute the assets
of the estate. For instance, if a decedent solely owned any real
property at the time of his or her death, the estate would be
required to go through Probate in order to transfer title of that
real property to the decedent's heirs or beneficiaries. In this type
of situation, the beneficiaries or heirs would need to seek the
assistance of an attorney as our office can not give legal or
procedural advice. Probate is not needed if all assets were jointly
held and one of the joint holders is the survivor. |
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Disposition of Personal Property Without Administration |
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There are times however, when our office can assist heirs and
beneficiaries through a process referred to as a Disposition of
Personal Property Without Administration. This process is also
sometimes referred to as a Small Estate Proceeding. Please refer to
Florida Statute 735.301 to determine if you are eligible for this
type of process. This form may not be used when real property is
involved. If you are unsure as to whether this process applies to
your situation, you may wish to contact an attorney.
The required forms and documentation for a Disposition of Personal
Property Without Administration are as follows:
Original Last Will and Testament of the decedent, if one exists
Death Certificate, certified copy Copy of the statement from funeral home showing by whom the bill
was paid Signed and notarized consents from all heirs, if any Copy of the bank statement, stock certificates, insurance checks,
policy value information forms, or any related information regarding
the assets that you are attempting to transfer with this procedure
Once these required forms and documents are in order,
please come to the Probate Division for assistance. One
of our staff will assist you in completing the petition
for this procedure and will present it to the presiding
probate judge. The filing fee of $231.00 is due at the
time the Petition is filed. There is also a $3.00 charge
for one additional certified copy of the Order for Payment of Funds
which is generally required by the institution holding
the assets. If the judge approves the petition, an Order
for Payment of Funds will be entered by the probate court
which directs that the assets in question be distributed
as outlined in the petition.
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Wills |
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Pursuant to Florida Statute 732.901, the original Last Will and
Testament of a deceased person must be deposited with the Clerk of
the Circuit Court having venue of the estate of the decedent within
10 days after receiving information that the testator (a person who
dies leaving a will) is dead. The statute also states that the
custodian of the will must supply the clerk with the date of death
or social security number of the testator upon deposit. Please be
advised that there is a charge of $1.00, indexing fee, to deposit a will with our
office.
In some instances, the company or office holding assets
of the deceased will require a certified copy of the Last
Will and Testament to transfer the assets in question.
It is always a good idea to contact the company or office
and inquire as to what is needed to complete the transfer.
Our office can provide you with certified copies of the
will at the rate of $1.00 per page, plus a $2.00 charge
for certification. |
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Mental Health |
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The term "mental health" for our purposes, basically
refers to several different types of filings in the Probate,
Guardianship, and Mental Health Department. These filings
include Baker Acts and Substance Abuse cases, Ex parte
and Involuntary Placements, Petitions to Determine Incapacity,
and Petitions for Adult Protective Services. All types of proceedings filed under
this category are confidential and are not public record.
Baker Act - See Special Services
Marchman Act (alcohol or drugs) - See Special Services
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Adult Protective Services |
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Petitions for Adult Protective Services are filed by the Florida Department of Children and Families and are usually filed on behalf of an elderly person whom they have reason to believe is in danger of being taken advantage of in some way. Contact The Division of Children and Families; 337 N 4th Street, Suite A, Ft Pierce FL 34950 (772)-467-4141. |
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Petition to Determine Incapacity |
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These petitions are the first step in the process of establishing guardianship. They are filed in conjunction with Petitions for Appointment of Guardian and the petitioner is required by Florida Law to be represented by an attorney. |
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Guardianship |
Guardianship is a legal procedure to protect the personal and/or property rights of an incapacitated person by having a Court appointed guardian. There are various types of guardianships. An attorney can assist you in determining what type of guardianship, if any, is necessary.
Guardianship cases are generally established when:
- Someone is declared incapacitated. An adult who isn't capable of taking care of their own financial affairs and/or their own personal wellbeing.
- A guardianship is required for a minor who is the recipient of a court settlement over $15,000.
- A minor has inherited money more than $15,000 or real property.
- There is a need by a parent to have a guardian appointed because the parent is not going to be available for a period of time, such as a mother going into the military.
An individual may choose a person to be their guardian or the guardian of their minor child(ren), before they have a need for that guardian, by completing a Declaration of Pre-Need Guardian. Guardianships are established for persons for various reasons; such as an adult who lacks the ability to care for him/herself in some aspect, a minor who has received an inheritance, or a minor who has received a settlement for a personal injury claim. These certainly are not the only reasons that guardianships are established, but the majority of guardianships in Martin County have arisen for needs such as these.
A function of the Guardianship division of the Martin County Clerk's Office is to audit and monitor the guardianship files active in Martin County. We will do our very best to assist the public in any way that we can. However, please be advised that our capacity does not permit us to give out legal advice or guidance in completing the various guardianship reports that are required.
As some guardianships require the filing of a Verified Inventory of Guardian of the Property or an Annual Accounting of the Guardian of the Property, our office charges an audit fee for these reports. Please see the "Fees and Services Charges" page for a breakdown of the audit fees.
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Q |
Are guardianships established for the elderly only? |
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A |
Guardianships can be established for adults of all ages and are
also established for minors in several situations. For example, if
a minor has received a settlement greater than $15,000, a guardian
of his or her property must be appointed. There are also instances
where family members, such as grandparents, are appointed as
guardians when the parents of the minor are unwilling or unable to
care for the minor child. |
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Q |
What steps can I take if I know an individual that is incapable of
caring for themselves and needs a guardian? |
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A |
The first step is to contact an attorney. The Clerk's office
may not give legal advice or guidance in completing the various
guardianship forms and reports that are required. If you are able
and qualified to serve as guardian, you may petition to be
appointed guardian, through an attorney. If you do not wish to be
appointed guardian, it is possible that a professional guardian
may be appointed. |
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Guardianship Qualifications |
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Any resident of this state who is not under any legal disability
or the power of another and is 18 years of age or older is qualified
to act as guardian of a ward. Further qualifications can be found in
Section 744.309 of the Florida Statutes. Nineteenth Judicial Circuit Court of Florida (4 & 8 hr Guardianship Training) |
