How to Open a Spouse's Probate Estate in Florida to Pursue a Federal Toxic-Exposure Claim

Detailed Answer

This article explains, under Florida law, how to open a deceased spouse’s probate estate so an appointed representative can pursue a federal toxic-exposure claim on behalf of the decedent’s estate. This is a general guide only — it does not give legal advice. If you need help, contact a Florida probate attorney and an attorney experienced with Camp Lejeune or other federal toxic tort claims.

1. First: do you actually need probate?

Not every asset owned by a deceased person goes through probate. In Florida, probate is required to administer property that is titled in the decedent’s sole name and that does not pass automatically to someone else. Assets that typically avoid probate include:

• Bank accounts, life insurance, or retirement accounts with valid beneficiary designations.
• Property owned as joint tenants with right of survivorship.
• Assets held in a properly funded revocable living trust.
• Florida homestead property that passes by constitutional protections to a surviving spouse or heirs.

If the claim you want to pursue (such as a Camp Lejeune claim) belongs to the decedent and the decedent’s claim is not held in a non-probate vehicle, a personal representative (PR) appointed by a Florida probate court usually must prosecute that claim on behalf of the estate.

2. Which court and what paperwork?

In Florida, probate cases are filed in the Circuit Court in the county where the decedent lived at death. The typical steps are:

1. Locate the will (if any) and important documents: death certificate, marriage certificate, titles, account statements, deeds, and lists of assets and debts.
2. File a Petition for Administration with the Clerk of the Circuit Court in the decedent’s county of domicile. If there is a will, you file for probate of the will and appointment of the personal representative named in the will. If there is no will, ask the court to appoint a personal representative (intestate administration).
3. Provide the court with the original will (if there is one), the death certificate, and the names and addresses of heirs and beneficiaries so the court can give notice.

Florida’s general probate rules and procedures are in Chapter 733 of the Florida Statutes. For an overview of administration types and procedures, see the Florida Legislature’s probate chapter: Fla. Stat. ch. 733.

3. Summary administration vs. formal administration

Florida provides two common administration routes:

• Summary administration. Faster and cheaper. Typically available when the estate’s probate assets are below a statutory threshold or if the decedent died more than four months before filing and there is no need for formal administration. Summary administration rules are in Fla. Stat. ch. 735 (see the summary administration sections).
• Formal administration. Used when the estate exceeds the summary thresholds, when creditors or complex issues exist, or when no one qualifies for summary administration. Formal administration gives the personal representative broader powers but takes longer and costs more in filing fees and possibly attorney fees.

4. Getting authority to bring a claim on behalf of the decedent

When the court appoints a personal representative (also called an executor or administrator), the clerk issues official Letters of Administration or Letters Testamentary. Those letters are your proof of authority to collect assets and to pursue lawsuits in the decedent’s name — including federal claims tied to the decedent’s injuries or death.

If you plan to sue for injuries or wrongful death related to Camp Lejeune exposure, the federal claim for the decedent typically must be brought by the personal representative of the estate. Do not file suit in federal court until you have authority from the probate court or you risk procedural problems.

5. Creditor notice, claims, and estate timeline

After appointment, the personal representative must identify assets, notify known creditors, and, in some cases, publish notice to unknown creditors. The estate must pay valid claims and taxes before distributions. Closing an estate can take from a few months (summary) to a year or more (formal), depending on complexity.

6. Practical steps to pursue the Camp Lejeune claim

1. Open probate (summary or formal) so the court appoints you (or someone) as personal representative and you receive Letters.
2. Gather medical records, VA records, residency records showing presence at Camp Lejeune, and any employment or service records related to time at the base. Preserve all evidence now because federal claims depend heavily on proof of presence and injuries.
3. Consult with an attorney experienced in Camp Lejeune claims to evaluate the federal cause of action, potential limitations, and the appropriate court. Federal law created specific rights and procedures for Camp Lejeune claims; an attorney will advise on timing, proof, and damages available.
4. After obtaining Letters, have the probate court’s documentation and Letters ready to present to any defendant or the federal court when you file the action on the estate’s behalf.

Helpful Hints

• Gather key documents immediately: the death certificate, decedent’s will (if any), marriage certificate, social security number, titles to real property, bank/account statements, insurance policies, and service records showing time at Camp Lejeune.
• Check whether the decedent had a trust. Trust assets typically avoid probate and may already give a trustee authority to pursue claims.
• Look for beneficiary designations on retirement accounts and life insurance — these pass outside probate and may affect the estate’s assets available to satisfy claims or to fund litigation costs.
• If the estate appears small, ask whether summary administration or a non-probate small-claims route will work. Summary administration can significantly reduce delay and cost.
• Get a probate attorney for the local county where the decedent lived; the clerk of court can often provide forms but an attorney can handle complexities, creditor issues, and interactions with a federal claim.
• Engage a federal tort/toxic-exposure attorney early. Camp Lejeune litigation is complex, often requiring medical proof and military records; an experienced attorney can coordinate evidence collection while you pursue probate authority.
• Act promptly. Although probate itself can take time, some federal claims have filing windows and evidence becomes harder to locate over time.

Where to look for official Florida resources

Florida probate statute overview: Fla. Stat. ch. 733 (Probate Administration)

Florida summary administration: Fla. Stat. ch. 735 (Summary Administration)

Final practical note and disclaimer

This article explains general Florida probate procedure and common steps to secure authority to pursue a decedent’s federal claim. It is not legal advice and does not create an attorney-client relationship. Probate and federal toxic-exposure claims involve important procedural deadlines and legal nuances — speak with a Florida probate attorney and with a lawyer who handles Camp Lejeune or federal toxic-exposure litigation to protect your rights and preserve evidence.