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Do I NEED a lawyer for probate in Florida?

By Long H. Duong

99.99% of the time, the answer is yes.

Generally speaking, a personal representative must have attorney representation before the probate courts in Florida.

“But it’s a simple estate!  Just a house and a checking account!”

Sorry, that’s not the criteria for a “simple estate” and it certainly doesn’t lay the groundwork for rules requiring representation.

Here’s the primary rule:

Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.

I know what some of you are thinking…

“Well, I am the sole beneficiary, so I must be able to represent myself.”

You may very well be the sole beneficiary but you are probably not the sole interested person.  Interested persons may include all sorts of people or entities, but the primary concern here are creditors.

“Well, we paid off all the credit cards, so we’re good right?”

Did you pay off Medicaid? Medicaid is a “class 3″ creditor which basically means they are up there on the list of people who must be paid before any beneficiary takes their share of the estate.  Medicaid must be notified if the decedent was 55 or older.

I could go on and on, but here’s the bigger picture:

We have taken no less than 20+ cases in the last year for clients who tried to start Summary Administration themselves.  They had convinced themselves it was easy enough to do that it was “just a few forms.”  Of course until they had to provide the appropriate proposed orders to the judge.  Others didn’t know that there was a “proof of will” process required.  Still others didnt’ realize that the court clerks don’t give legal advice.

If a court clerk overlooks the fact that you dont’ have an undersigning attorney on your paperwork, you might get your foot in the door.  But the consequences of starting a process you’re not sure how to finish can be brutal - and the clerks won’t help you one bit.  Don’t blame them - they aren’t allowed to give advice.

And if the estate is NOT eligible for Summary Administration, don’t even think about going it alone.  You won’t even get past the clerks in Formal Administration.

One last thing to note: Petitioners, Executors and Personal Representatives are held personally liable for their actions during the administration of probate.  This is not an arena you want to dabble in simply because you’ve found a few forms online.

You certainly don’t have to hire us, but please…hire an attorney to get it done right from the start.

Still not convinced?  Have a look at the Florida Probate Rules.

Florida Probate Rules

attorney representation, court clerks, interested persons, probate rules, sole beneficiary, summary administration

Full post as published by WeProbateFlorida.com on February 16, 2009 (boomark / email).