CLERK'S FREQUENTLY ASKED QUESTIONS
Among the large number of questions the clerk receives, there are a few that are asked more than most. Here you will find many of these "Frequently Asked Questions" and their answers.
If your particular question is not here, or you need elaboration on an answer given here, feel free to contact the Clerk by phone below or by email.
What is probate?
Probate is a legal process through which the assets of a deceased person are distributed to the heirs or beneficiaries. The Court oversees the estate to make sure debts are disposed of and proper distribution is made.
What is a will? When and where should it be filed?
A will is a document executed by a person which disposes of his/her property after death. It generally names a personal representative to administer the estate. The custodian of the will must deposit the will with the Clerk of the Circuit Court, within 10 days after receiving information that the person is deceased. The custodian should supply the person's date of death or the person's social security number to the Clerk upon deposit of the will, if this information is available.
Is it necessary for me to have an attorney?
Are there different types of proceedings that can be filed, depending on the size of the estate?
Florida Rules of Probate Procedure 5.030 says:
(a) Required; Exception. 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. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative.
If you need assistance in finding a probate lawyer, this LINK
There are 3 basic types of proceedings for administering the decedent's estate:
What happens if a person dies and has left no will?
Formal Administration - This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances. The capacity in which the representative will act is determined by the Court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.
Summary Administration - Summary administration may be filed when the value of the entire estate does not exceed $75,000 or, that the decedent has been dead for more than 2 years. .
Disposition of Personal Property Without Administration - The disposition is filed to request release of assets of the deceased to the person who paid the final expenses, such as funeral bills or medical bills for the last 60 days. This procedure may be accomplished with the filing of a petition. The form required to file the disposition is available from the Clerk of Circuit Court in the Probate Division. This cannot include real property.
The property will be distributed in accordance with Florida law.
What happens if there is a will filed, but no personal representative has been named?
It will be necessary for an attorney to petition the Court to appoint a personal representative to administer the estate.
How are probate proceedings initiated?
Probate proceedings are initiated with the filing of a petition by an interested person asking to be appointed personal representative and/or distribute property depending on size and complexity of property. The petition is normally prepared by an attorney. The appointed person will be responsible for the estate until all bills are paid and the balance of the estate is distributed to the rightful beneficiaries.
What type of paperwork must accompany the form for filing a disposition of personal property without administration?
What happens after this information is filed with the Clerk?
The following must be provided:
- If the decedent has a will, it must be filed with the Clerk of Circuit Court within ten days of the notice of death.
- Itemized, paid funeral bill. Receipt must identify the individual paying the bill.
- Paid receipts for any medical expenses incurred sixty days prior to death.
- Death certificate.
- Specific information regarding the type of assets to be released.
- Identification of the person filing.
- Filing fee as set by Florida Statutes.
The Court will enter an order either allowing or disallowing the release of the assets. A certified copy of the order is then mailed to the petitioner.
What resources are available to me, whether I get an attorney or not?
The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, which are located HERE
The Florida Probate rules of court are located HERE
And a helpful brochure from the Florida Bar is located HERE
What is the Marchman Act?
Chapter 397 of the Florida Statutes is know as the "Hal S. Marchman Alcohol and Other Drug Services Act of 1993". It provides for the involuntary or voluntary assessment and stabilization of a person allegedly abusing substances like drugs or alcohol, and provides for treatment of substance abuse.
What is a voluntary Marchman Act admission?
A voluntary admission occurs when a person seeks treatment for substance abuse and applies to a service provider to receive such treatment.
What is an involuntary admission for assessment and stabilization?
An involuntary admission occurs when there is good faith reason to believe the person is substance abuse impaired, and because of such impairment, the person has (a) lost the power of self control with respect to substance use, and either (b) has inflicted or attempted/threatened to inflict, or, unless admitted for treatment, is likely to inflict, physical harm to him/herself or another; or (c) the s judgment has been so impaired because of substance abuse that he/she is incapable of appreciating the need for substance abuse services and to make a rational decision regarding substance abuse services.
Who files the Petition for Involuntary Assessment and Stabilization?
The petition may be filed by the s spouse, guardian, any relative, a private practitioner, the director of a licensed service provider or designee, or any three adults with personal knowledge of the person. For a minor, the petition may be filed by a parent, legal guardian, legal custodian, or licensed service provider. The petitioner must have recently observed the behavior of the person who is the subject of the petition.
What do I need to bring with me to the s Office to file a petition to have a person evaluated?
You will need to bring picture identification and an address/location for the person. You should arrive at the s Office by 3:30 p.m. to allow time for the processing of paperwork.
What happens after I file the petition?
The court will review the petition and, relying solely on the contents of the petition, enter an order authorizing the involuntary stabilization and assessment of the person. The order will be faxed to the Warrants Division of the Leon County s Office and the person will be transported to Apalachee Center for Human Services at 2634 Capital Circle, N.E. The facility will assess and stabilize the patient for a period not to exceed 5 days. A written assessment is sent to the court.
How can a person be ordered to involuntary treatment for substance abuse?
After the court receives the written assessment, a Petition for Involuntary Treatment may be filed. The assessment must be received, and the petition must be filed, within 12 days of the assessment and stabilization period.
Who files the Petition for Involuntary Treatment of Substance Abuse?
For an adult, the petition may be filed by the spouse or guardian, any relative, a service provider or any three adults who have personal knowledge of the s substance abuse impairment and the previous course of assessment and treatment. For a minor, a petition may be filed by a parent, legal guardian or service provider.
What happens after the petition is filed?
A hearing is held within 10 days. A notice of hearing is provided by mail to the petitioners and any attorney on record. A summons, a copy of the Notice of Hearing, and a copy of the petition is served on the subject by the Leon County s Office. At the hearing, all relevant testimony is taken by the court and the court may enter an Order for Involuntary Treatment for a period not to exceed 60 days.
Where can I find more information about the Marchman Act?
The Marchman Act can be found in Chapter 397 of the Florida Statutes. Visit our website and find the link to the statutes online.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Clerk and Comptrollerís Office, ATTN: Probate, Leon County Courthouse, Suite 100, 301 South Monroe Street, Tallahassee, FL 32301, (850) 577-4180; if you are hearing or voice impaired, call 711 via the Florida Relay System.
What is a Baker Act proceeding?
Chapter 394 of the Florida Statutes is known as "The Baker Act" and as "The Florida Mental Health Act". A Baker Act proceeding is a means of providing an individual with emergency services and temporary detention for mental health evaluation and treatment, either on a voluntary or involuntary basis.
How are voluntary and involuntary Baker Act admissions different?
A voluntary Baker Act admission occurs when a person 18 years of age or older, or a parent of a minor, applies for admission to a facility for observation, diagnosis, and treatment.
How is an involuntary Baker Act proceeding initiated?
An involuntary Baker Act admission occurs upon a finding by a court that (1) a person is mentally ill and, because of the mental illness, he/she has refused voluntary placement for treatment or is unable to determine whether placement is necessary; (2) he/she is incapable of living alone or with help, and without treatment is likely to suffer from neglect or refuse to care for him/herself, or there is a substantial likelihood in the near future that he/she will inflict serious bodily harm on him/herself/others as evidenced by recent behavior; and (3) all less restrictive treatment alternatives are not appropriate.
A. A law enforcement officer may take a person who appears to meet the criteria for involuntary examination into custody and deliver the person to the nearest receiving facility for an examination.
What steps must be taken to obtain an ex parte order?
B. A physician, clinical psychologist, psychiatric nurse, or clinical social worker may execute a certificate that he or she has examined a person within the preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination. A law enforcement officer shall take the person named in the certificate to the nearest receiving facility for an examination.
C. A court may enter an ex parte (on behalf of one party, without notice) order stating that the person appears to meet the criteria for involuntary examination. A law enforcement officer shall take the person into custody and deliver him or her for an examination.
A person who has personal knowledge of the behavior of the individual, should give sworn testimony. The individual believed to be suffering from mental illness should be in Leon County. The petitioner(s) must have observed the behavior and must have talked to the individual about obtaining a voluntary examination within a few days. The Clerk's Office will assist with the necessary paperwork.
What happens after the order is issued?
Because paperwork has to be processed, the petitioners should visit the Clerk's Office by 3:30 p.m. The petitioners should bring a valid photo identification of themselves and should be prepared to provide a specific address for the individual.
The order will be faxed to the Warrants Division of the Leon County s Office, which will take the person into custody and to a receiving facility. The receiving facility generally utilized is the Apalachee Center for Human Services located at 2634 Capital Circle N.E., Tallahassee, FL. The person is examined at the facility and the staff and doctors there determine any further action.
How long may a person be held under an ex parte Baker Act order?
A person may not be held for more than 72 hours.
Where can I find more information about the Baker Act?
The Baker Act Law can be found in Chapter 394 of the Florida Statutes. Visit our website and find the link to the statutes online.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Clerk and Comptrollerís Office, ATTN: Probate, 301 South Monroe Street, Suite 100, Tallahassee, FL 32301, (850) 577-4180; if you are hearing or voice impaired, call 711 via the Florida Relay System.