Probate & Guardianship
Probate is the legal process through which a deceased person's assets are distributed to the heirs or beneficiaries, according to 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 the Probate process 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 provide legal or procedural advice. Probate is not needed if all assets were jointly held and one of the joint holders is the survivor.
- Disposition of Personal Property Without Administration
- Mental Health
- Adult Protective Services
- Petition to Determine Incapacity / Guardianship
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.
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) has passed away. 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 of the will. 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.
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.
- Learn more about Baker Act & Marchman Act (drugs & alcohol)
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. Learn more at The Florida Department of Children and Families - Adult Protective Services.
Petition to Determine Incapacity
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.
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.
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. See also the Nineteenth Judicial Circuit Court of Florida for information about 4 & 8 hour Guardianship Training.