Common Probate Mistakes Families Make in Florida

Losing a loved one is difficult enough without the added stress of navigating Florida’s probate process. Unfortunately, many families make avoidable mistakes that end up being costly and time intensive to fix. Whether you have just been named personal representative or are helping a parent settle a sibling’s estate, knowing where families commonly go wrong can help you avoid the same pitfalls.

At Brian K. McMahon, P.A., our South Florida probate lawyer helps families navigate every stage of the probate process. If you have a probate matter you would like to discuss, do not hesitate to reach out to our office.

Losing Track of the Original Will

When an original will was in the decedent’s (or testator’s) possession and cannot be found after death, Florida law presumes the decedent destroyed it with the intention of revoking it. This presumption can be difficult to overcome, and families who assume a photocopy will suffice are often surprised to learn otherwise. If you are searching for a loved one’s will, it’s worth reviewing safe deposit boxes, home files, and the decedent’s attorney’s office as early as possible in the process.

Missing the 10-Day Deadline to Deposit the Will

Many families do not realize that Florida law imposes a strict deadline on whoever is holding a deceased person’s original will. Under Fla. Stat. §732.901, the custodian of a will must deposit the document with the clerk of court in the county where the decedent lived within 10 days of learning of the death. This applies even if no probate case has been opened yet. Failing to do so can expose the custodian to a court order compelling production, along with costs and attorney’s fees if no just or reasonable cause for the delay exists.

Assuming an Out-of-State Family Member Can Serve as Personal Representative

It’s common for families to name an out-of-state relative or close friend as personal representative without checking whether Florida law actually allows it. Fla. Stat. §733.304 restricts nonresidents from serving as personal representative unless they are the decedent’s adopted child or adoptive parent, related by lineal consanguinity (such as a parent, child, or grandparent), a spouse, or a sibling, aunt, uncle, niece, or nephew, or the spouse of someone in one of those categories. A nonresident friend or unrelated caretaker, however trusted, typically does not qualify.

Distributing Assets Before the Creditor Claims Period Ends

Families are often eager to distribute assets to beneficiaries as quickly as possible, but doing so too early can be a costly mistake. Once a personal representative (PR) publishes a notice to creditors, most creditors have three months from the date of the first publication to file a claim against the estate. The PR has a legal obligation to conduct a diligent search for any known or reasonably ascertainable creditors. These creditors are entitled to direct notice, and their claims may remain open up to two years if that notice isn’t properly served. Distributing estate assets before this window closes can cause a PR to be held financially responsible for any valid claims that present afterward.

Assuming Family Understanding Can Override the Will or Intestacy Law

Verbal promises or assumptions of what your loved one would have wanted will not trump a valid will. If no will exists or is lost and its original contents cannot be verified, Florida’s intestate succession laws under Chapter 732, Part I of the Florida Probate Code will apply. These laws determine exactly who inherits and in what order, regardless of what family members believe is fair. When beneficiaries rely on promises that were never put in writing, this can become a major source of conflict.

Do Not Attempt to Handle Probate Without an Attorney

Except in narrow circumstances, Florida law requires that a PR be represented by an attorney admitted to practice in Florida. Under Florida Probate Rule 5.030(a), this requirement applies unless the personal representative happens to be the estate’s sole interested person or an attorney admitted to practice in Florida. Families who attempt to manage formal administration on their own may make procedural errors, mishandle notices, or make distributions incorrectly. By working with our experienced South Florida probate lawyer, you can ensure that legalities are followed so that heirs can receive their distributions as soon as possible.

Reach Out to Our South Florida Probate Lawyer Today

Every probate estate is unique, and even conducting probate with the best of intentions can result in a legal nightmare if executed improperly. At Brian K. McMahon, P.A., our South Florida probate attorney helps personal representatives and families understand their obligations and avoid missteps that can lead to legal complications. To arrange your free consultation, contact our office online or by calling (561) 658-1789 today.