Florida Probate Statute 733.206: Probate of Will of Resident After Foreign Probate
When someone passes away in Florida, the law requires that before the decedent’s property can be transferred to others such as family and friends, the estate must first go through a court-supervised process called probate. During probate, if the decedent left a will, the probate court determines if the will is authentic. If so, the court will admit the will to probate, and the court appointed personal representative will move forward with the steps required to settle the decedent’s estate and distribute the assets to the beneficiaries named in the will. While probate is often a fairly routine process, in some instances unexpected events occur that must be addressed, such as discovering that the same will was already admitted to probate in a different state or country. If you are a personal representative or another interested party in an estate that is going through the probate process, it is important that you work with an experienced Fort Lauderdale probate lawyer who can assist with the process, including issues related to Florida Statutes, section 733.206- Probate of will of resident after foreign probate.How Probate Works
Probate is the process of proving that a will is authentic. In Florida, a will can be self-proving or not self-proving. If the will is self-proving, then no additional steps are required to prove that it is authentic. A will is self-proving if in additional to the required formalities for executing a will in Florida, it also includes an affidavit in which both witnesses declare that the will is that of the testator and that the testator signed it in their presence. In addition, the witnesses must declare in the affidavit that they each signed the will in the presence of the testator and in the presence of each other.
If the will is not self-proving, then additional steps will be necessary to prove the will. Typically, the probate court will require the two witnesses to the signing of the will to be located. They will then be required to present testimony to the court that the will is authentic and is the actually wishes of the decedent. If the witnesses cannot be located or if one or both is incapacitated, the personal representative named in the will have to testify that the will is authentic. The process for proving a will that is not self-proving can be very time-consuming. Thus, as a Fort Lauderdale probate lawyer will explain, when making a last will and testament it is a good idea to make it self-proving.Objections to Probate
When a petition is submitted to the court to admit a will to probate, the law requires that the petitioner notify interested parties of the petition. Interested parties include beneficiaries, heirs, creditors, and the personal representative. If an interested party feels that the will is not valid and should not be probated, he (or she) has the right to file and objection to probate and provide the court with evidence supporting the objection. If the court agrees that the will is invalid, it will deny the petition to probate the will.Wills Admitted to Foreign Probate
In Florida, the law requires that the will of a decedent be submitted to the probate court that has jurisdiction over the matter. That would be the court in the Florida county where the decedent was domiciled at the time of his death. If the decedent did not have a domicile in Florida, then the proper venue would be the circuit court in any county in Florida where the decedent’s property is located. If the decedent had no domicile in Florida and possessed no property in Florida, then in the Florida county where any debtor of the decedent resides would be the proper place to initiate probate proceedings.
However, there are instances in which a decedent’s will is mistakenly admitted to probate in another state or another country. According to Florida Statutes, section 733.206- Probate of will of resident after foreign probate, if a will is mistakenly admitted to probate in any other state or country before probate in Florida, the will may be still be admitted to probate in Florida if the will could have been admitted to probate in Florida. This means that the will must have been executed with the formalities required in Florida. To learn more about how to proceed in circumstances where a decedent’s will was admitted to probate in the wrong, discuss the specifics of your situation with an experienced probate lawyer in Fort Lauderdale.Related Statutory Provisions
- Petition: § 733.202, Fla. Stat.
- Probate of a will written in a foreign language: § 733.204, Fla. Stat.
- Probate of will of resident after foreign probate: § 733.206, Fla. Stat.
- Establishment and probate of lost or destroyed will: § 733.207, Fla. Stat.
(1) If a will of any person who dies a resident of this state is admitted to probate in any other state or country through inadvertence, error, or omission before probate in this state, the will may be admitted to probate in this state if the original could have been admitted to probate in this state.
(2) An authenticated copy of the will, foreign proof of the will, the foreign order of probate, and any letters issued shall be filed instead of the original will and shall be prima facie evidence of its execution and admission to foreign probate.
(3) Any interested person may oppose the probate of the will or may petition for revocation of the probate of the will, as in the original probate of a will in this state.
If you have questions about probating a will where there are special circumstances, such as where a will was already admitted to probate in another jurisdiction as described in Florida Statutes, section 733.206- Probate of will of resident after foreign probate, it is important that you discuss your concerns with an experienced probate attorney. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing clients in complex estate matters and understand the nuances of the Florida Probate Code. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.