FAQ’s

Provided below are answers to questions asked by the public regarding the constitutional and statutory duties, responsibilities, and services of the Clerk of Circuit Court.

FAQ’s Menu

Child Support
Financial Services
Holidays and Closures
Jurors
Juvenile
Marriage/Divorce
Criminal
Passports
Probate Mental Health / Guardianship
Probate / Estate
Public Records
Traffic

General

What are your hours?
Our offices are open 8 AM to 4:30 PM Monday-Friday.

What is your mailing address?
P.O. Box 472, Milton, Fl 32572 (attention: Felony, Misdemeanor, Traffic, Civil, Family Law Dept.)

Do you take checks or credit cards?
We accept cash, checks written on local banks, MasterCard, Discover & Visa credit cards.

Can the Clerk of Courts assist me with my legal questions?
Clerks are not attorneys and are not allowed to give legal advice.

Child Support

Q: I received a delinquency notice saying I am behind on my child support payments. I know I am up-to-date. Why has this happened and what do I do now?

In order for a Notice of Delinquency to be issued, the depository records of the Clerk of the Court must reflect that a payment is more than 15 days late. If you feel the Notice of Delinquency was issued in error, there are several things you can do.

You are stating that you know you are up-to-date, so the first thing you should do is call the depository, state that you received a Notice of Delinquency and you do not agree with the records. The depository clerk will access your case and review the records with you over the phone, if possible. Some cases are too involved for a phone review and you may be asked to bring your records or pay stubs, if your support is taken directly out of your paycheck, into the office for a more in depth review. There are a number of reasons why the depository records may not coincide with yours. These are just a few of the reasons:

You have made payments directly to the custodial parent after the court ordered payments through the depository. Direct payments can be considered a gift and you may not be given the credit.
You did not realize that you were responsible for making the payments until your employer started the deductions. Your employer has two weeks from the time they receive the court order until they have to start the deductions. That also applies when you change jobs. You must make the payments until your new employer starts deducting it from your check.
There may be a change in circumstances that the depository is not aware of, such as a change in custody or the emancipation of a child. Always make the depository aware of any new court orders that affect your support payments.
A payment has been remitted to the State Disbursement Unit but it is not posted on the depository records. Under these conditions the depository will request that the State Disbursement Unit research the payment. The Notice of Delinquency will be put on hold until the research has been completed. If speaking with the depository has not resolved the issue, you can contest the Notice of Delinquency and have a hearing before the judge assigned to your case. Some Clerk’s offices offer a pleading packet for a small fee for your convenience.
Please keep in mind that your motion to contest must be filed within 20 days of the date of the Notice of Delinquency. If it is not filed and your case still reflects a delinquent balance, a Judgment by Operation of Law will be entered into the public records.

Financial Services

Q: I am often asked what my duties are as County Auditor in relation to the Board of County Commissioners and my constituency.

The basic duties of the Clerk, as County Auditor, are to see that sound accounting practices are being followed, that internal controls over the county’s assets are adequate, and that the Board’s budgetary policies are being met. All warrants (checks) drawn on county depositories must be signed by the Chairman of the Board of County Commissioners, attested by the Clerk, and affixed with the county seal.

Holidays and Closures

Q: What holidays are you closed?

You may check our holiday and closure dates here.

Jurors

Q: My husband received a summons for jury duty. He is an independent building contractor, and if he isn’t around, the work doesn’t always get done properly or in a timely manner. What are acceptable reasons for dismissal from serving on the jury?

The criteria for exclusion from jury include:

Being under prosecution for any crime.
Having convictions in Florida, federal court, or any other state, territory, or county, of bribery, forgery, perjury, larceny or any other
Holding public office as Governor, Lieutenant Governor, a Cabinet officer, Clerk of Court, or judge.

If none of these apply to your husband, there are other conditions which allow exemption from jury service if requested:

Expectant mothers or parents who are not employed full-time and have custody of a child under the age of 6.
Persons employed as full-time federal, state, or local law enforcement officers, or investigative personnel for these entities.
Practicing attorneys or physicians, or persons who are physically infirm.
Persons who have served as jurors in the county within the past 12 months.
Persons who are 70 years of age or older.
Persons who are responsible for the care of those who, because of mental illness, physical or mental incapacity, or are incapable of caring for themselves.

None of these conditions applying, the judge does have discretion to excuse persons for reason of hardship or inconvenience. However, such excusals are carefully reviewed, and are not granted automatically.

For more information on Jury duty please click on the Jury Information link.

Juvenile

Juvenile Dependency Frequently Asked Questions

Q: What is a dependent child?

Under Florida Statutes, Chapter 39, a dependent child is one who has been found by a court to:

Have been abandoned, abused, or neglected by the child’s parents or legal custodians.
Have been surrendered to the Department of Children and Family Services.
Have been voluntary placed with a licensed child-caring agency, a licensed child-placing agency, an adult relative, or DCF, after which placement a case plan has expired and the parents or legal custodians have failed to comply with the requirement of the case plan.
Have been voluntarily placed with a licensed child caring agency for the purposes of subsequent adoption, and the parents have signed consent pursuant to the Florida Rules of Juvenile Procedures.
Have no parent or custodians capable of providing supervision and care.
Be at substantial risk of imminent abuse, abandonment, or neglect by the parents or legal custodians.

Q: If my child has been removed from my care, who do I contact?

You may contact the Department of Children and Families at (850)983-5521.

Q: What are the procedures for court appointed attorney to assist me with my case?

You will be given an application for appointment of counsel at your first hearing to complete to determine if you qualify for court appointed counsel. If you qualify for the appointment of counsel, the judge will appoint counsel at the shelter hearing or if no shelter hearing at the arraignment hearing. The clerk will provide you with the appointed counsel name, phone number, and the next hearing date after appointment of counsel.

Q: Where can I obtain legal advice if I don’t qualify for a court appointed counsel?

You can contact the Lawyer Referral Services for the Escambia & Santa Rosa County Bar Association at (850)434-6009. The Clerk’s office is prohibited from giving legal advice and/or recommending attorneys.

Q: How can I find out info on my case?

All juvenile cases are confidential and cannot be discussed over the telephone. With proper picture identification, all parties that are authorized to have access to the court file can visit the Clerk’s Office located at 4025 Avalon Boulevard, Milton, FL to receive information.

Q: How do I reopen my dependency case?

You may request a Prose form from the Clerk’s Office Juvenile Division to re-open your case. The Prose Request for Review Hearing, Motion for Modification of Custody and/or Visitation, or Motion for Enforcement form has an instruction page that outlines the procedures and filing fee.

Juvenile Delinquency Frequently Asked Questions

Q: What is Juvenile delinquency?

Juvenile delinquency involves anyone under the age of 18 that has been arrested and/or charged with a crime.

Q: How do I find out about my child’s charge?

All juvenile cases are confidential and cannot be discussed over the telephone. With proper identification, all parties that are authorized to have access to the court file can visit the Clerk’s Office located at 4025 Avalon Boulevard, Milton, FL to receive information.

Q: Are all juveniles detained at the juvenile detention center until their court hearing?

No… If the child meets the criteria to be detained securely, he/she will be detained at the juvenile detention Center until the detention hearing is held and the court determines detention status. If the child does not meet the criteria to be detained, the child will be released to the proper custodian with a written notice to appear before the Juvenile Judge at a later date.

Q: What are the procedures for court appointed attorney to assist me with my child’s case?

You will be given an application for appointment of counsel at your child’s first hearing to complete to determine if you qualify for court appointed counsel. If you qualify for the appointment of counsel The Judge will appoint counsel at your child’s first hearing the detention hearing or if not detained at the arraignment hearing. The clerk will provide you with the appointed counsel name, phone number and the next hearing date after appointment of counsel.

Q: Where can I obtain legal advice if I don’t qualify for a court appointed counsel?

Q: How can I receive a copy of my Juvenile record?

If you come in with proper picture identification the juvenile clerk can perform a record search for a fee. You may also receive copies for a fee. Clerk’s Office location: 4025 Avalon Boulevard, Milton, FL (Juvenile Division)

Q: What is the difference between having a criminal history record sealed vs. expunged?

When a criminal history record is sealed, the public will not have access to it. Certain governmental or related entities, primarily those listed in s. 943.059(4) (a), Florida Statutes, have access to sealed record information in its entirety.

When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order. All they would receive is a caveat statement indicating that “Criminal Information has been expunged from this Record”.

Q: Does a juvenile record go away when a youth becomes an adult?

No, at least not right away. In most cases, the FDLE may keep a youth’s criminal record until the individual turns 24 years old. At that time most juveniles’ records are then automatically expunged (destroyed). There are some exceptions. Further information can be found on the FDLE website under F.S. 943.05.15.

Marriage/Divorce

Q: Is there a waiting period in the State of Florida for getting married after a couple applies for a Marriage License? Are blood tests required, and do you have to apply in the County you live in? Can a minor apply for a license?

Yes and no. There is normally a 3-day waiting period as of January 1, 1999. However, if both parties have taken a 4-hour premarital preparation course given by a minister or counselor registered with the Clerk of the Circuit Court, the waiting period is waived and the license fee is reduced.

If only one applicant took the course, the waiting period is still required.
If neither applicant is a Florida resident, the waiting period is not required.
If one applicant is not a Florida resident, and the other is a Florida resident and has taken the premarital course, the waiting period is still required.
Blood tests have not been required since this test was abolished October 1, 1986.
A marriage license may be applied for and solemnized in any Florida county.
Minors, who under oath, swear that they are parents or expectant parents of a child may apply. In addition, the pregnancy must be verified by a written statement from a licensed physician.
A previously married minor may also apply.
A person age 16 or 17 may apply with the consent of both parents or guardian, unless the parents are divorced and only one parent has full custody.

Q: My husband and I have mutually agreed on a divorce. We have heard the State of Florida has something called a “Simplified Divorce.” What is it and would we be eligible?

Simplified Divorce is a fast, easy and inexpensive procedure for ending a marriage for eligible couples. To be eligible:

Both must agree that the marriage cannot be saved.
Both must agree on how to divide property and debts.
There must be no minor children of the marriage, and the wife cannot be pregnant.
At least one of you must have been a resident of Florida for the past six months.

Both parties must come to the Clerk of Circuit Court’s office with picture ID’s and fill out a Petition for Simplified Dissolution of Marriage. Forms are available in the Clerk’s office. An attorney is not required, but if either of you has any legal questions, consulting an attorney prior to filing is advised. A hearing to finalize the divorce will be scheduled as soon as possible after a 20 day waiting period. Both parties must appear at the hearing. The final judgment is then taken by both parties to the Circuit Civil Division of the Clerk’s office.

For more information on Marriage and Divorce please click on the Marriage Information link.

Criminal

Q: How can I change my court date?

The Clerk’s office does not have the authority to change a court date. If you are represented by an attorney, please contact their office. If you do not have an attorney, any request to continue your case must be made in writing to the Judge. It is important that your request includes your name and case number. File your request with the Clerk’s office and we will forward it to the Judge.

Q: What happens if I fail to appear for my court date?

Failing to appear in court could result in the Judge issuing a capias for your arrest. The Judge may order a forfeiture of the bond posted on your case. Upon arrest, you may be required to post an additional bond or the Judge may require that you be held without bond.

Q: How do I have a public defender appointed to my case and how much does it cost?

At your arraignment, you will have an opportunity to apply for the services of the public defender. If you qualify, the Judge may appoint a public defender to your case at arraignment.

When you complete the application requesting the services of the public defender, an application fee of $50 will be assessed for your case.

Q: Where can I get legal advice if I don’t qualify for the public defender?

The Clerk’s office is prohibited from dispensing legal advice. Any technical or legal questions you have about your case should be addressed with a qualified attorney. If you do not know an attorney, you can contact the Lawyer Referral and Information Service of the Escambia-Santa Rosa Bar Association at (850) 434-6009.

Q: Who should I notify if my address changes?

It is your responsibility to notify the Clerk’s office of any change of address, in writing, at Santa Rosa County Clerk of Court, Attn: County Criminal Division, P.O. Box 472, Milton, FL 32572. Please include your case number on any correspondence.

Q: How do I get information on a case in Santa Rosa County?

You may contact the County Criminal Division by phone at 850-981-5561, Monday through Friday between the hours of 8:00 AM and 4:30 PM for general information regarding case numbers, upcoming court dates, etc. This information is also available online at the following link: www.santarosaclerk.com

Q: How do I have my case sealed or expunged?

The Clerk’s office has a packet you can purchase for $3.00. The packet includes instructions regarding the steps necessary to process such a request. These instructions are for informational purposes only and are not intended to replace the assistance of a qualified attorney.

Once you have received your packet, if you still have questions you may contact the Florida Department of Law Enforcement (FDLE) at (850) 410-7870 or visit them online at www.fdle.state.fl.us. FDLE’s website contains valuable information regarding a variety of topics including, but not limited to, frequently asked questions regarding sealing and expunging records.

What is a misdemeanor?
A minor offense tried in county court that could lead to a fine of up to $1000 and/or one year in county jail. DUI fines could be higher.

What is a felony?
A major offense tried in Circuit court that could lead to a fine or imprisonment in a state institution.

What is a speedy trial?
Limits the time between arrest and trial; for misdemeanor, it is 90 days or less; for felony, it is six months or less.

What is bail?
A security given to assure a prisoner will appear and answer in court that is required for release until trial. This can be obtained from a bail bondsman, currently at a ten percent fee.

Does my cash bond take care of my criminal case; do I have to come to court?
You must appear in court, and enter a plea.

Can I get my bond money back today?
No, the bond stays with the case until it is disposed of. It takes approximately a week to process the refund transfer after a case is disposed of. Cash bonds will be posted to any outstanding fines and court fees owed by the defendant.

When is my next court date?
You can find your next court date on the website; however, you should check with your attorney or the clerk’s office for any changes that have not been posted.

Can I get a criminal history on someone? What is the charge?
Requests for criminal history and/or dispositions should be made in writing and directed to the appropriate department within the clerk’s office. The charge is $1.00 for each name searched and $1 for each page copied.

Can I get a continuance?
If you have an attorney, you should direct all questions concerning your case to your attorney. If you are representing yourself, you should submit a written request for continuance to the clerk of courts. The clerk will forward your request, along with your file, to the appropriate judge.

What will happen if I don’t appear in court?
The Judge may order the clerk of courts to issue a warrant for your arrest. You can avoid being arrested by contacting the Clerk for a continuance before your court date.

Is there an outstanding warrant for my arrest?
Cases with outstanding warrants do not appear on the website; however, you may call the appropriate clerk’s department to determine if there is a warrant.

Can I do community service work to pay for my fine and costs?
This issue must be approved by the appropriate judge. In many instances, the judge will allow.

Can I have an attorney appointed to assist me in my case?
The public defender will be present at your arraignment. If you meet certain financial guidelines, the court will be willing to appoint.

Do I have to have all the money for the fine on the day I am sentenced?
No, the court will allow a reasonable time to pay. Partial payments are accepted with w/a fee; $5 per payment or a one-time $25 fee.

Can my relative attend court with me?
Yes, you may bring a relative to court with you; however, seating space is limited, and defendants are given priority. Your relative may have to stand or wait outside the courtroom until your case is called.

Can I pay my costs in my home county or state?
Not at this time. You can, however, call the Clerk of Courts and make a credit card payment over the phone. In the near future, you will be able to make payments online.

What am I charged with?
You can inquire into the Clerk’s website to view your record, call, or e-mail the appropriate clerk’s department.

Can I tell the judge my story or file documents on my behalf?
If you are represented by an attorney, you should not file or discuss your case with anyone in the court system other than your attorney. He will advise you appropriately. If you are representing yourself, you may file documents, and the judge will allow you to address the court.

How much fine & costs can I expect to pay?
Court costs are set by the Florida statutes at $190 in misdemeanor cases + 5% of the fine surtax. The maximum fine is $1,000 for a first-degree misdemeanor, and $500 for a second-degree misdemeanor. If you fail to pay, your case will be referred to a collection agency and your license will be suspended.

Questions about probation:
Can I do my probation in my home county or state?
County probation is non-transferrable; however, the court will work with you in allowing reporting by mail if appropriate.

Are probation fees paid to the clerk of courts?
No, probation fees are paid directly to the probation dept. Fines & court costs are paid to the clerk.

Where can I do my community service work?
You will be directed by the community service director to an approved site for community service.

Passports

Q: What are the requirements for obtaining a Passport?

Passports are good for a period of ten (10 ) years for persons age 16 and older. Five (5) years for persons 15 and under. All passports will be mailed from the passport agency to the address listed on the passport application. Allow 6-8 weeks for delivery. Passports may be expedited if you submit an additional $60.00 fee plus the express mail fee. Please allow 2-3 weeks for expedited passport delivery.

To schedule an appointment at the Milton Office call (850) 983-1966.
Santa Rosa County Administrative Center:
6495 Caroline Street
Suite A
Milton, FL 32570

To schedule an appointment at the Southend Office call (850) 983-1824.
South Santa Rosa County Service Center:
5841 Gulf Breeze Parkway
Gulf Breeze, FL 32563

First time passport applicants must submit the following:

One (1) passport photo taken within the last 6 months.
A certified copy of birth certificate from the state of birth with a raised, embossed or stamped seal affixed thereon or a previously issued passport. Original naturalization certificates are required for naturalized citizens. Photocopies are not accepted by the passport agency. If you do not have a proper birth certificate, forms for requesting birth records can be obtained from the Clerk’s Office. Birth certificates must be long form and cannot ba delayed birth certificate.
Driver License for identification is required and you must appear in person to process your application.
Minors must be accompanied by both parents or legal guardians.
A check or money order made payable to U.S. Dept. of State for $130.00 if age 16 or older, or $100.00 if age 15 or under. An additional fee of $35.00 application fee will be paid to the Clerk of Court for all ages.

Renewal applications require the following:

You can renew if: your passport was issued less than 15 years ago.
You were at least 16 years old when your most recent passport was issued.
You can submit your most recent passport undamaged.
You use the same name as on your most recent passport or can submit proper documentation to reflect your name change (e.g., court order or copy of marriage license.)
One (1) passport photo taken within 6 months.
Your old passport (most recent).
A check or money order made payable to U.S. Dept. of State for $130.00.
A completed application that you can obtain from the Clerk’s Office.

If you cannot comply with the above, you must follow the first time passport requirements.

Extra fees and conditions apply for expedited passports and passport carries.

For more information on Passports please click on the Passport Information link.

Guardianship / Mental Health

Baker Acts / Marchman Acts

Q: What is my first step in doing a Baker Act / Marchman Act on a family member?

You can call (850)437-8900 or go to the Avalon Center 6024 Spike Way, Milton, FL 32583 behind the County Auditorium and speak to a counselor. (Forms can also be located on our website www.santarosaclerk.com if Avalon Center is closed or unavailable to assist)

www.santarosaclerk.com -click on Links– click on Online Forms and Services – Click on Mental Health

Q: What if I am not related to the person, I want to file a Baker Act / Marchman Act on?

The petition can be filed by the person’s spouse or guardian, any relative, a private practitioner, a licensed service provider or designee or a person with personal knowledge of the person and the situation that are willing to do the paperwork and will be willing to appear in court if a court date is set.

Q: What is the fee for filing a Baker Act / Marchman Act?

The Avalon Center or the clerk in the probate division will give you the paperwork at no charge. Once you’re finish completing the paperwork bring it to the Clerk of Court Probate Department with your ID and $3.50 oath fee.

Q: Do I get to speak to a Judge when I turn in the Baker Act / Marchman Act paperwork, so they know what is going on?

No, we will process the paperwork and get it to a Judge in between their hearings so the earlier in the day the better, When you’re filling out the paperwork be specific to the details of the situation and if you need to write additional information just use a blank piece of paper. Remember you will not be there to explain things to the Judge so if there is something you think the Judge needs to know, it needs to be written in the paperwork.

Q: Do I need to come back to get the signed paperwork from the Judge so I can get the Sheriff’s Department to serve them with the Order to have them committed?

No, you need to call us in about an hour and we will let you know if the Order was signed and if it was we will process the paperwork and get it to the Sheriff’s Office and they will process it from there. (We give the petitioner our number and if needed the Civil Processing #)

Q: What if the person isn’t home when the police department comes to serve the Baker Act / Marchman Act paperwork?

The Deputy will try to serve the Respondent more than once.

Q: My spouse is an alcoholic. If the court agrees they need help, how long will they be detained?

A person can be court ordered for Involuntary Assessment and Stabilization for up to 5 days at a licensed substance abuse provider. If the provider can’t complete the assessment within the 5 days, it can file a written request for an extension of time to complete its assessment and the court may grant additional time, not to exceed 7 days after the date of the renewal order, for the completion of the involuntary assessment and stabilization of the client. If depending on the outcome of the assessment, the court finds the person meets the criteria for involuntary treatment, he/she can be ordered to treatment for a period of up to 60 days.

Incapacity / Guardianship

Q: Why can’t I get guardianship of my mother without an attorney?

We do not have blank forms and cannot give legal advice. (We give them the Lawyer Referral number: 434-6009, Legal Aid 432-8222) Most adult guardianship cases involve Incapacity cases also.

Q: How is a person determined to be incapacitated?

Any adult may file with the court a petition to determine another person’s incapacity setting forth the facts upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a layperson to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated.

If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing. This is a different process entirely than a Baker Act.

Q: Who may serve as Guardian?

Any adult resident of Florida can serve as guardian, as can certain institutions. A close relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony or who are so ill they can’t do the job cannot be appointed. If the family is able to agree on who should be the Guardian, the court rarely rejects that choice.

Q: What are the costs and Attorney fees involved?

The court filing fee is $400.00 for a Guardianship of the Person and Property $235.00 if the Guardianship is of the Person only and an additional $231.00 for the Incapacity case. The attorney fee varies based on the amount of work required and whether there is an emergency situation and maybe many months after the Guardianship is established.

The Judge will appoint the examining committee which is three members; the court also appoints an attorney for the ward and if the ward has assets those fees are paid from those assets.

Q: Is the Guardianship permanent?

Not always. If a person recovers from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person’s rights. A Guardian can resign and another family member could handle matters or possibly a professional guardian could be appointed. There are also situations where someone is appointed Guardian to a minor and when the minor reaches the age of majority the Guardianship is discharged.

Q: Why would someone need to be a Guardian of a minor?

A child’s parents are the child’s Natural Guardians and in general, may act for the child. In circumstances where the parents die or become incapacitated or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a Guardian.

(Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary. We call this filing a Preneed.)

Q: What does a Guardian do?

A guardian who is given authority over any property of the ward shall inventory the property, use funds for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions. The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental, and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care with a physician’s statement attached.

Q: Is a Guardian accountable?

Yes, Guardians must be represented by an attorney who will serve as “attorney of record”. Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to file a bond) and may be required to complete a court-approved training program. A Guardian who does not properly carry out his or her responsibilities may be removed.

Q: Is Guardianship the only means of helping an incapacitated person?

No, Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.

Q: Where can I find more information on Incapacity and Guardianship?

Contact your lawyer, your local bar association, or The Florida Bar Lawyer Referral Services, at 1-800-434-6009. (Legal Aid is 432-8222)

Probate / Estate

Q: What is Probate?

Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries. Probate in Florida

Q: What is an example of probate assets?

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death, for example: a bank account in the sole name of a decedent, a life insurance policy, annuity or individual retirement account that is payable to the decedent’s estate, real estate titled in the sole name of the decedent (unless it is homestead or held as joint tenants with rights of survivorship or as tenants by the entirety) This list is not exclusive but is intended to be an example.

Q: Why is Probate necessary?

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state but allows the decedent to make certain decisions by leaving a valid Will.

Q: What is a Will?

A will is written, signed by the decedent and witnesses, that meets formal requirements set forth by Florida law. A will usually designate a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee.

Q: What happens to Probate assets if there is no Will?

This will depend on who survives the decedent.

Q: Where should I file my father’s Probate?

Probate papers are filed with the Clerk of Court in the county where the decedent lived. If the decedent had an accident or something happened while they were out of town you still file it where they lived not where they died. If they owned property in more than one state you would file where their home of record was. As always please talk to your attorney if you have legal questions.

Q: What is a Personal Representative, and what do they do?

The Personal Representative is the person, bank, or trust company appointed by the court to be in charge of the administration of the estate. (Other terms used: executor, executrix, administrator, and administratrix) The Personal Representative is directed by the court to administer the estate pursuant to Florida law. (For example: Inventory assets, Publish notice, Notify creditors, Object to improper claims, pay valid claims, file tax returns, pay taxes, distribute assets, close probate administration.)

Q: Who can be a Personal Representative?

The personal representative could be an individual, bank, or trust company, subject to certain restrictions. An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain another close relative, can serve as personal representative. A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

Q: Who has preference to be Personal Representative?

If the decedent left a valid will, the designated personal representative nominated in the will has preference to serve. If the decedent did not leave a valid will, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs.

Q: How are Estate Creditors handled?

Prior to commencement of probate proceedings, a creditor can file a Caveat with the court. Upon publication of notice of administration (Notice to Creditors) a creditor or other claimant may file a document called a “Statement of Claim” against the estate with the Clerk of the Circuit Court where the estate is being administered. The PR’s attorney may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

Public Records

Q: I am interested in bidding on a piece of foreclosed property that is being auctioned by the Clerk’s office. What do I need to do? Also, how can I get a list of properties being auctioned?

You should come to the Clerk’s office on the day of the sale and register with the Clerk. Chapter 45, Florida Statutes, requires that a bidder other than the judgment holder must present a good faith deposit of 5% of your projected bid in cash or cashier’s check in order to confirm a bid. You may contact the Civil Division of the Clerk’s office for information regarding scheduled foreclosure sales.

Q: Ten years ago I received a judgment against someone who owed me money, and a lien for that amount was placed on their house. They recently sold their house, but my lien was not on record. What gives?

When your judgment lien was recorded in the Official Records of your county, it remained on the record for a period of 7 years. At the end of those 7 years, a certified copy of your judgment needed to be re-recorded, along with an affidavit containing your current address. Each time you recorded your judgment it was for a period of 7 years, and could have been re-recorded every 7 years up to 20 years.

The re-recording would have to be done within the 90-day period immediately preceding the expiration of the lien. If your lien was still current and a title search was done on the property prior to the sale, the title company would locate the lien information, verify that the lien was valid, and notify the seller. The sale could not have taken place until your lien was satisfied. Because your lien was not re-recorded, your lien was not considered to be valid. As a result, you were not notified and sent the money due you.

Beginning July 1, 2001, the effective time period was extended from 7 to 10 years before a judgment must be re-recorded. The total effective period will still be no longer than 20 years. Any judgment recorded prior to July 1, 1987 will not be affected by this change.

Q: I have some legal issues and cannot afford an attorney. I have heard that there are some forms that I can use to file a court proceeding that I fill out myself. How do I get these forms and how can I make sure I fill them out properly?

There are over 80 different self-help, or pro se, legal forms available relating to the following categories:

Dissolution of Marriage
Miscellaneous Petition
Injunction for Protection
Service and Notice
Documents Requesting Information From Opposing Party
Child Support
Miscellaneous Motions and Documents
Stepparent Adoption
Landlord and Tenant
Miscellaneous
Residential Leases

Some of these forms are also available on the Internet at: www.flcourts.org at the Self Help Center. Additionally, on this website is a listing of the entities that provide legal aid for people who cannot afford an attorney. If you need help filling out the forms or finding a phone number for the nearest legal assistance office, call the Clerk’s Office and ask where assistance is available.

Traffic

Q: My nephew from South Carolina recently got a speeding ticket in Milton. He has lost the ticket and doesn’t know how to take care of it.

It is always distressing to get a traffic ticket when traveling, but the Clerk of Court’s office can help. When a ticket is issued, a copy is sent to the Clerk within several days. Please have your nephew call the Clerk of Court’s office in Santa Rosa County. The Traffic Division can tell him the amount, the method of payment, and how quickly it must be paid to prevent him from incurring further penalties. It is important to pay out-of-state tickets, as they will show up on your driver license record.

Q: I ran a stop sign the other day and went to pay the ticket at the Clerk’s office. I was curious about where traffic ticket money ends up.

The money from traffic infractions is used in a variety of ways. The majority of the dollars and cents stay in the city or county where the ticket is written. The rest of the fine money is distributed to the state for general revenue and a variety of state trust funds and programs, such as: Emergency Medical Services, Brain and Spinal Cord Rehabilitation, Florida Endowment, Child Welfare Training, Juvenile Justice, foster care citizen review panels, Nongame Wildlife studies, and state criminal justice programs. The Clerk of Court only retains a half of one percent. The percentage of money received from traffic tickets to be applied to each of the various funds is established by the Legislature, and it is the statutory responsibility of the Clerk of Court to see that the monies are properly distributed.