Probate

Probate is the legal process through which a deceased person's assets are distributed to the heirs or beneficiaries, per the wishes of the deceased as stated in The Last Will and Testament or if there is no will, according to Florida Law. The Court oversees the estate to ensure that all debts are paid and assets are properly distributed.

Whether or not an estate is required to go through Probate depends on the assets that the decedent owned at the time of his or her death. Probate is needed when a court order is required to transfer ownership of the deceased's properties or to distribute the assets of the estate. For instance, if a decedent solely owned any real property at the time of his or her death, the estate would be required to go through Probate in order to transfer title of that real property to the decedent's heirs or beneficiaries. In this type of situation, the beneficiaries or heirs would need to seek the assistance of an attorney as our office can not give legal or procedural advice. Probate is not needed if all assets were jointly held and one of the joint holders is the survivor.

Disposition of Personal Property Without Administration

There are times however, when our office can assist heirs and beneficiaries through a process referred to as a Disposition of Personal Property Without Administration. This process is also sometimes referred to as a Small Estate Proceeding. Please refer to Florida Statute 735.301 to determine if you are eligible for this type of process. This form may not be used when real property is involved. If you are unsure as to whether this process applies to your situation, you may wish to contact an attorney.

The required forms and documentation for a Disposition of Personal Property Without Administration are as follows:

• Original Last Will and Testament of the decedent, if one exists

• Death Certificate, certified copy

• Copy of the statement from funeral home showing by whom the bill was paid

• Signed and notarized consents from all heirs, if any

• Copy of the bank statement, stock certificates, insurance checks, policy value information forms, or any related information regarding the assets that you are attempting to transfer with this procedure

Once these required forms and documents are in order, please come to the Probate Division for assistance. One of our staff will assist you in completing the petition for this procedure and will present it to the presiding probate judge. The filing fee of $231.00 is due at the time the Petition is filed. There is also a $3.00 charge for one additional certified copy of the Order for Payment of Funds which is generally required by the institution holding the assets. If the judge approves the petition, an Order for Payment of Funds will be entered by the probate court which directs that the assets in question be distributed as outlined in the petition.

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Wills

Pursuant to Florida Statute 732.901, the original Last Will and Testament of a deceased person must be deposited with the Clerk of the Circuit Court having venue of the estate of the decedent within 10 days after receiving information that the testator (a person who dies leaving a will) is dead. The statute also states that the custodian of the will must supply the clerk with the date of death or social security number of the testator upon deposit. Please be advised that there is a charge of $1.00 to deposit a will with our office.

Upon depositing a will with our office, the depositor will receive a Receipt for Deposit of Will which includes the date of filing and the seal of the Martin County Clerk of the Circuit Court. This receipt is something that should be placed with other important documents concerning the deceased.

In some instances, the company or office holding assets of the deceased will require a certified copy of the Last Will and Testament to transfer the assets in question. It is always a good idea to contact the company or office and inquire as to what is needed to complete the transfer. Our office can provide you with certified copies of the will at the rate of $1.00 per page, plus a $2.00 charge for certification.

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Mental Health

The term "mental health" for our purposes, basically refers to several different types of filings in the Probate, Guardianship, and Mental Health Department. These filings include Baker Acts and Substance Abuse cases, Ex parte and Involuntary Placements, Petitions to Determine Incapacity, and Petitions for Adult Protective Services. Please be advised that there is no filing fee for any of the mental health filings except for the Petition to Determine Incapacity, which is $231.00. All types of proceedings filed under this category are confidential and are not public record.

Baker Act (mental) - A process established by Florida Statutes Mental Health Act by which a person whose current mental state poses a danger to that person or to others may be taken to a mental health receiving facility for an involuntary examination.

Marchman Act (alcohol or drugs)- A process established by Florida Statutes by which a person may be admitted for an involuntary evaluation to determine if his or her judgment is impaired due to substance abuse and he or she has, therefore, lost the power of self-control with respect to substance abuse and poses a danger to himself or herself or to another person

Ex Parte Procedures
Outlined below are Ex Parte procedures and Petitions for Involuntary Placements as these are the types of filings that are most common in our office. Please be advised that Petitions to Determine Incapacity are filed in conjunction with Petitions for Appointment of Guardian, and the petitioner is required to be represented by an attorney.

Ex Parte procedures for either Baker Act or Substance Abuse cases consist of a layperson, such as a family member or friend, filing a petition with the court to have someone taken into a mental health facility for evaluation and treatment. The person for which treatment is being sought is referred to as the "respondent."

Once the petition is completed, the petitioner files it with the Clerk's Office. A clerk then enters the information from the report into the "Petition for Evaluation" or "Petition for Involuntary Assessment and/or Stabilization." When the petition is complete, the petitioner swears that the allegations contained in it are true to the best of his or her knowledge and signs his or her name.

The next step is for the clerk to complete an "Ex Parte Order for Involuntary Assessment and Stabilization," and submit it the judge for his or her review and signature. After the judge has signed the order, certified copies are taken to the Martin County Sheriff's Office for service on the respondent, and for their office to deliver said respondent to the appropriate facility for treatment.

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Involuntary Placement Procedures

Involuntary Placement cases are filed with the Clerk's Office by mental health facilities that already have the respondent in their care. Generally these situations arise when physicians do not feel that the respondent is stable or competent enough to leave the facility without being a danger to him or herself or others. For the facility to legally keep the respondent in their care the court has to issue an order reflecting that decision.

When a Petition for Involuntary Placement is filed it alerts the Clerk's Office that there will be a hearing. Once the Clerk's Office is aware that there will be a hearing on a particular case, a Notice of Hearing on Petition for Involuntary Placement is prepared and processed, and an Attorney is appointed to represent the respondent. In addition, the State Attorney's Office is notified.

The hearings for these cases are attended by the judge, attorney, attorney ad litem, the physician(s) (or his.her written report), and other care providers for the respondent. Family members and/or close friends are also permitted at these hearings. In addition, each hearing concerning a mental health filing is recorded by the Clerk's Office.


Upon hearing the testimony of the attending physician, case manager, and other associated health care professionals, a decision is made regarding the treatment of the respondent and an appropriate order is entered.

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Adult Protective Services

Petitions for Adult Protective Services are filed by the Florida Department of Children and Families and are usually filed on behalf of an elderly person whom they have reason to believe is in danger of being taken advantage of in some way. Contact The Division of Children and Families; 337 N 4th Street, Suite A, Ft Pierce FL 34950 (772)-467-4141

Guardianship

Guardianship is a legal procedure to protect the personal and/or property rights of an incapacitated person by having a Court appointed guardian. There are various types of guardianships. An attorney can assist you in determining what type of guardianship, if any, is necessary.

Guardianship cases are generally established when:

• Someone is declared incapacitated. An adult who isn't capable of taking care of their own financial affairs and/or their own personal wellbeing.

• A guardianship is required for a minor who is the recipient of a court settlement over $15,000.

• A minor has inherited money more than $15,000 or real property.

• There is a need by a parent to have a guardian appointed because the parent is not going to be available for a period of time, such as a mother going into the military.

An individual may choose a person to be their guardian or the guardian of their minor child(ren), before they have a need for that guardian, by completing a Declaration of Pre-Need Guardian. Guardianships are established for persons for various reasons; such as an adult who lacks the ability to care for him/herself in some aspect, a minor who has received an inheritance, or a minor who has received a settlement for a personal injury claim. These certainly are not the only reasons that guardianships are established, but the majority of guardianships in Martin County have arisen for needs such as these.

A function of the Guardianship division of the Martin County Clerk's Office is to audit and monitor the guardianship files active in Martin County. We will do our very best to assist the public in any way that we can. However, please be advised that our capacity does not permit us to give out legal advice or guidance in completing the various guardianship reports that are required.

As some guardianships require the filing of a Verified Inventory of Guardian of the Property or an Annual Accounting of the Guardian of the Property, our office charges an audit fee for these reports. Please see the "Fees and Services Charges" page for a breakdown of the audit fees.

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Q

Are guardianships established for the elderly only?

A

Guardianships can be established for adults of all ages and are also established for minors in several situations. For example, if a minor has received a settlement greater than $15,000, a guardian of his or her property must be appointed. There are also instances where family members, such as grandparents, are appointed as guardians when the parents of the minor are unwilling or unable to care for the minor child.

Q

What steps can I take if I know an individual that is incapable of caring for themselves and needs a guardian?

A

The first step is to contact an attorney. The Clerk's office may not give legal advice or guidance in completing the various guardianship forms and reports that are required. If you are able and qualified to serve as guardian, you may petition to be appointed guardian, through an attorney. If you do not wish to be appointed guardian, it is possible that a professional guardian may be appointed.

Guardianship Qualifications

Any resident of this state who is not under any legal disability or the power of another and is 18 years of age or older is qualified to act as guardian of a ward. Further qualifications can be found in Section 744.309 of the Florida Statutes.