Florida probate can be a tedious undertaking. However, probate—time-consuming as it may be—serves several critical purposes. When probate is initiated, the estate’s personal representative must account for the deceased person’s assets, notify creditors of the death, and inform beneficiaries of their rights in the estate. Ordinarily, the personal representative’s responsibilities, while taxing, are straightforward and fairly predictable. Unfortunately, complications may arise if the personal representative cannot locate the decedent’s heirs.
Florida’s Formal Notice Requirements
Probate is the multi-step process of formally settling a deceased person’s estate. For most families, probate involves the following formalities:
- The deceased person’s personal representative files a petition to initiate probate in the county where the decedent resided.
- The personal representative sends formal notice of the probate proceedings to the deceased person’s surviving spouse, named beneficiaries or heirs, and others as enumerated by Florida Statute.
- After sending notice, the personal representative must gather and inventory the decedent’s assets.
- Once assets have been marshalled, the personal representative may pay the estate’s creditors and disburse inheritances.
However, the relative linearity of probate may be complicated by the absence of named beneficiaries or heirs. Florida law explicitly requires that beneficiaries or heirs be served formal notice of probate through any of the following means:
- Sending a copy of the petition to the beneficiary’s last known address using a delivery service that requires a signature upon receipt.
- Sending a copy of the petition to the beneficiary’s attorney.
- Send a copy to the beneficiary’s guardian or caretaker, if the beneficiary is underage or incapacitated.
- Send a copy as otherwise provided by the rules of Formal Notice.
If the beneficiary cannot be located, or does not respond to the notice of probate, the personal representative and their attorney may be required to proactively search for the beneficiary.
Addressing the Absence of a Beneficiary
If the personal representative cannot locate a beneficiary, they may be able to serve notice of probate by publishing a notice in a local newspaper or other media outlet. However, before the personal representative may publish a notice in a newspaper, they must receive the court’s permission. Under most circumstances, the court will only grant permission if it has been provided an “affidavit of diligent inquiry.” The purpose of this affidavit is to ensure that the personal representative made a good-faith effort to locate the beneficiary.
If the beneficiary fails to respond to the notice, then the personal representative may be able to take the following actions:
- Petition the court to recognize the beneficiary as legally deceased, if there is reasonable cause to believe that the beneficiary has passed away.
- Petition the court to appoint a Guardian Ad Litem who can "stand in the shoes" of the beneficiary.
- Petition the court for a preliminary distribution of the remaining assets to other beneficiaries.
- Place the beneficiary's assets in a trust for a pre-determined period of time.
If the beneficiary’s assets are placed in a trust, the estate’s other beneficiaries may petition the court to release and redistribute the assets after the pre-determined period of time has elapsed.
In a worst-case scenario—such as when the decedent died intestate and has no locatable beneficiaries or heirs—the remaining assets may “escheat” to Florida, becoming property of the state. Unclaimed assets will be transferred to the control of the Florida Chief Financial Officer and placed in the State School Fund.
Should the funds remain unclaimed for a period of 10 or more years, they will escheat to the state and be used for public educational purposes.
Contact an Attorney Today
When a Floridian passes away, their estate plan forms the basis of their legacy. If you have been appointed as an estate executor and cannot locate a missing heir, DeLoach Hofstra & Cavonis, P.A., could assist you in protecting a loved one’s last wishes. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.
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