In Florida, things can — and often do — get interesting in probate matters. Unlike other states where matters can be more routine, Florida is known to deliver on the drama. That is because we have tourists, snowbirds, retirees, long-term vacationers, as well as non-citizens, spouses married to non-citizens, a disproportionate amount of fraudsters and illegals, and others who may pass away here and have a probate matter to resolve — in addition to residents of our state.
One of these interesting complications for Florida probate proceedings is something that is decided early on in any probate matter, which is the question of which probate court is proper under Florida law to handle things for the decedent’s estate. Where does the Last Will and Testament get filed?
1. The Question of Venue
What location is proper for the filing of the Last Will and Testament and the administration of a decedent’s estate is defined as the proper “venue” for the case. Venue is dependent on different things, and it is not always easy to figure out which Florida probate court has venue, legally, over an estate here in Florida.
Venue can be an important issue and something that people who try and handle a probate matter without legal help may not understand. What if they make a mistake?
If you file in the wrong probate court, then your bad venue decision means your case can get challenged and moved. It will be re-filed in the proper county, with the proper probate court. Could be days, weeks, or months after the probate has been filed in the wrong place.
And don’t expect the clerk who takes your filing in the clerk’s office to make that decision for you. That’s not their job. If you make a mistake, that’s not for the clerk to say. It’s for the judge to rule upon when the matter is placed before the bench.
Additionally, whenever a proceeding is filed in the wrong venue the probate judge may transfer the case on his or her order, and anything that occurred before the transfer will not be voided because of the improper venue.
2. Florida Probate Court System
Each county in the State of Florida has its own probate court. Some of the bigger counties, like Miami-Dade County, have more than one. These counties are organized within the Florida justice system into “judicial circuits.”
If there is an appeal from a probate court, it will move forward to the reviewing court for its particular judicial circuit. That reviewing court’s (the appeals court) decision is subject to review by the Florida Supreme Court.
Here are the probate courts for our part of South Florida as an example:
Probate Judges: Hon. KENNETH GILLESPIE, Hon. CHARLES M. GREENE (Admin. Judge Probate), Hon. JEFFREY R. LEVENSON
Probate Judges: Colodny, Yvonne Hon. – Cueto, Jorge E. Hon. – Eig, Spencer Hon. – Hirsch, Milton Hon. – Soto, Bertila Hon.
3. Factors in Probate Court Venue
There are different situations that will decide venue under Florida law. Four factors come into play to decide proper venue of a probate proceeding.
Under Florida Statute 733.101, venue of probate matters is determined primarily according to the decedent’s domicile. “Domicile” is a legal term. It means “a person’s usual place of dwelling and shall be synonymous with residence.” Florida Statute 732.201 (13).
In other words, the key factor for venue is where the person who has passed away was living at the time of their death. That’s easy enough.
2. Real Estate Holdings.
However, there are lots of people who invest here in Florida but don’t live in our state (or even in our country) but they own property here. Florida is a mecca for lots of people who come and enjoy our sunny beaches but don’t establish a formal residence or domicile here. What happens then, if there’s no legal Florida residence for the decedent?
Then venue will be decided based upon land ownership. The proper probate court will be in the county where the person owned real estate here in Florida. If there were several real estate properties owned by the decedent, then the probate matter can be filed in any county where the decedent owned property. None of these counties get preferential treatment; the person filing the probate matter must choose one.
Next scenario. What if they died here in Florida but they did not live here, and didn’t own any real estate here, then what happens?
Then the law looks to debts. Probate can be filed in any Florida county where a debtor of the decedent resides.
4. Married Women.
Finally, married women get a special provision for purposes of probate venue here. Under Florida Statute 733.101, “[a] married woman may establish a separate domicile in this state for this purpose [venue], even though her husband is an alien or nonresident of Florida.”
What Should You Do?
Here in Florida, it’s encouraged by the Florida Bar and the Florida Courts for people to file their own probate matters when things are simple and fit easily into a standardized probate process. The Miami-Dade County Clerk’s Office, for instance, provides help and forms for you to do this. And it makes sense for lots of people — it saves time and lessens stress in a difficult time.
However, all too often those simple probate matters may hide complexity or a conundrum where an experienced Florida probate lawyer can be of great help. It’s not as expensive or complicated as many think: often, a simple telephone conference can resolve things. Like a venue question. So, if you have a concern about filing a probate matter, don’t hesitate to reach out and get legal help: it may be much less painless than you assume and very helpful to you in the long run.
A good piece of advice is to talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over the phone or in person, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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