Probate FAQs

The Letters of Administration is a legal document issued by the probate court identifying the person who has been appointed as personal representative, aka executor, and is now empowered to act on behalf of the estate. Under Florida statute, the fiduciary of the estate is referred to as the personal representative, but other states refer to the same role as the executor or administrator. The person appointed as personal representative is generally a close family member of the decedent, such as the surviving spouse or child, but occasionally can be an independent third party such as an attorney.

The Letters of Administration gives the personal representative the right to step into the shoes of the decedent, in order to collect assets such as bank accounts, brokerage accounts, and insurance policies. The personal representative is also in charge of selling or transferring any real estate and will be the person responsible for hiring the realtor, as well as executing the closing paperwork at the time of sale. The Letters of Administration occasionally stipulate the breadth of powers granted to the personal representative or any limitations placed on the personal representative by the court. Third parties, such as financial institutions, will rely on the certified copy of the Letters of Administration to identify the person whom they can release assets to. There are certain counties in Florida, which will limit the Letters of Administration, either requiring further court orders to transfer or sell any estate assets, or by requiring that all assets be deposited into a restricted depository. Some counties take a more traditional route and require the personal representative to pay a bond before obtaining the Letters of Administration.

The estate tax is a tax levied on certain assets left to your beneficiaries after death. The estate tax, sometimes referred to as a death tax, is imposed on the federal level and can also be applied on the state level, depending on the state in which the decedent was domiciled at the time of death. The current estate tax exemption on the federal level is rather large, amounting to $11.18 million per individual, or $22.8 million for married couples. As long as you have less than $11.18 million at the time of death, your estate will not be subject to any federal estate tax. Florida is such a popular choice for retirees and senior citizens, in part because the state has no state level death tax, nor any income tax, unlike many states in the northeast, which are known for taxing quite heavily.

The probate process can be a prolonged and expensive undertaking. There are many factors that can affect the course of administration, such as the complexity of the estate, the number of beneficiaries, and the number of potential creditors. One of the most important factors in assessing the total expense of the administration will be whether the interested parties are cooperating or are adversarial. An adversarial proceeding, such as a will contest, is going to greatly increase the amount of legal work and discovery required in order to settle the estate.

State law also affects the cost of probate. Florida, unlike many states in the northeast, has extensive requirements for the probate process, including that an attorney must hired in order to initiate a formal probate proceeding. Florida probate code also requires publication of notice to creditors in the local newspaper for two consecutive weeks in order to initiate the 90 day creditor period. Some typical expenses that you may experience during the probate process include an appraisal, the cost for a surety bond, court filing fee, legal fees, and cost of any accountings.

Before initiating the probate process, this is one of the primary questions asked by family members or beneficiaries.

From start to finish, the duration of the probate process can vary significantly. Predicting how long the probate process will take depends on which state you are conducting the administration in, and will vary depending on the size and complexity of the estate. There are many factors to consider – for instance, the size and value of the decedent’s assets, outstanding debts owed by the decedent, number of beneficiaries, tax implications, probate procedural requirements, etc. In Florida, on average, the probate process will range from 6 to 12 months, although in certain situations it can take longer, such as for adversarial proceedings. Apart from size and complexity what can hold back a probate case?

Often, the delays come from waiting for information from third parties. It’s always advisable to hire an expert probate attorney. Professional probate attorneys understand the processes involved and can use their experience to expedite the proceeding, predict what information will be necessary from the inception of the estate, and work through each case thoroughly and efficiently.

Some people are surprised to learn that there is no centralized depository where wills are required to be filed before someone’s death for safekeeping, unlike in some other states. In Florida, after someone passes away, it is the family’s responsibility to file the original last will with the relevant probate court, which will be the circuit court located in the county of last residence associated with the decedent. For example, if you pass away and your home is located in Boca Raton, someone will have to find your last will and testament and file the document with the Palm Beach County probate court. Once the will has been filed, it automatically becomes a public record and can be viewed by anyone at the local courthouse, or a copy can be purchased from the clerk’s office and mailed to a designated party.

If you are a named beneficiary in a will, you have the statutory right to request and review a copy of the document, but only after the death of the decedent. You should submit your request in writing to the attorney who drafted the estate planning for the decedent, to the nominate executor of the estate, or to the attorney on record for the probate administration.

Unfortunately, the probate process is tedious and can require an extensive amount of time to complete. To avoid the whole cumbersome process, it’s necessary that your estate plan be set up properly at the time of death, so that there are no assets titled in your sole name. The use of beneficiary designations on accounts is useful, but limited since they can only be utilized on certain assets and the designations do not assist in the event of incapacity. Establishing a revocable trust is the most common means of avoiding probate recommended by the estate planning community. It is critical that your assets actually be titled in the name of the revocable trust before death, in order to avoid the probate process.

Other tools for avoiding probate include transferring your property to your loved ones as a gift during your lifetime. Alternatively, you can establish joint ownership for your assets, so that ownership will be transferred automatically to the surviving owner(s) upon death. These alternative tools for avoiding probate have drawbacks, namely that you must give up complete control of your assets during your lifetime which makes many people are uncomfortable.

Ultimately, before you utilize any steps to avoid probate, consider seeking professional advice from an experienced probate attorney in Boca Raton.

Estate planning involves making an all-encompassing plan that provides for the transfer of specific assets that you own following your death, and occasionally before death. Transferring assets can be accomplished by numerous mechanisms including beneficiary designations, joint ownerships, wills and/or trusts (both revocable and irrevocable).

Following the death of a loved one, family members are often confused and overwhelmed with the probate process. When it comes to transferring the decedent’s property, the family must make an informed decision as to what type of probate administrations are available, which will vary depending on the state. In Florida, there are two primary types of probate, including

  • 1.) Formal Probate Administration
  • 2.) Summary Administration

A summary administration is only available for estates valued under $75,000, but important to rememebr that simply because an estate may be small enough to qualify for a summary administration, doesn’t mean it is the most efficient option.
Often a formal administration, involving the appointment of a personal representative with signing authority, can assist in expediting the overall administration. As such, hiring an attorney to assist in the process is a crucial step in the probate process so that all factors can be considered before initiating the process. In Florida, families are legally required to hire an attorney to assist with a formal probate proceeding. The attorney will be identified as the attorney of record for the estate.
In the beginning stages, an attorney will assist you in the probate process by initially filing the will and pleadings for the appointment as personal representative. After this initial filing, the attorney will be responsible for filing any future pleadings that may be necessary during the probate process including the inventory and final accounting. The attorney on record will be responsible for mailing notice to all interested parties throughout the process.

While every state varies on how they handle taxes during the probate process, Florida has no estate tax, or death tax, on the state level and no inheritance tax for beneficiaries. For Florida estates, the only tax concern is potential federal estate tax liability, as well as potential capital gains exposure. The federal estate tax only comes into play for an individual who dies having an estate with assets valued over $11.18 million. An estate worth more than $11.18 million has a potential estate tax liability and will be required to file a 706 estate tax return.

It is advisable that the personal representative, aka executor, of the estate set aside a sufficient reserve of assets to cover potential taxes. If you are not sure whether your estate will be impacted by taxes or not, consider reaching out to an experienced probate attorney that can guide you through the process and advise you in the best plan for transferring your assets to your loved ones after death.

In general, both the personal representative and attorney working on your estate will expect, and be entitled to, reasonable compensation for the services they provide to the estate. These reasonable fees are often determined either contractually before offering services, or can be based off the safe harbor provisions provided by FL probate code for what fee is presumptively reasonable.

To avoid any confusion as to whether fees will be permitted, it is common practice for drafting attorneys to include a clause in estate documents that allows for the payment of fees. Even with a clause that allows for the payment of fees, the amount is often not spelled out and exact dollar figures will need to be agreed upon by the parties involved. While every situation is unique, 3% of the estate assets is considered a presumptively reasonable fee for both personal representatives and attorneys managing the administration of an estate in the state of Florida.

Regardless of what is provided in a decedent’s estate plan, the transfer of property will generally depend on the details of the titles (ownership) for various properties. If a property is titled jointly, the property can generally transfer to the surviving owner automatically and with ease. If the property is not titled jointly, the property will only be transferred as designated by a decedent’s estate plan following the proper legal procedure.

Having jointly owned property can provide a simplified means of transferring ownship upon death. If you do not wish to have property jointly titled, a second option would be to designate a pay-on-death beneficiary for select assets. Either option can expedite the transfer of property following the owner’s death, since a court proceeding will not be required to remove the decedent’s name.

If property is titled with one sole owner and that owner passes away without a pay-on-death beneficiary, the property would need to go through the probate process to transfer properly.

To understand the impact of creditor claims on probate, we first need to define what probate is. Probate, or the probate process, is the court proceeding for establishing an estate of the decedent, and for transferring a decedent’s assets to identified beneficiaries, either via a last will and testament, or via intestate statutes. This formal proceeding ensures that all interested parties are served notice of what assets fall into the estate, as well as what portion of the estate each beneficiary is entitled to receive.

In Florida, during a formal probate administration all estates are required to publish a notice to creditors in the local newspaper which signifies the beginning of a 90 day creditor period. During this three month period any potential creditors of the decedent can file claims for reimbursement. Each claim will be filed on the docket and a copy will be provided to the personal representative either by a clerk, or by the attorney on record for the estate. It is the personal representative’s responsibility to review each claim in order to substantiate if it is valid and/or if sufficient documentation has been provided. The personal representative will then have an opportunity to pay the claim, object to the claim or negotiate directly with the claimant for a reduced settlement amount. Any objections will be served on the claimant, providing them notice that they have 30 days to initiate a civil lawsuit against the estate to enforce their claim, otherwise the claim will be barred or stricken. The personal representative and the claimant also have the option of entering into a joint stipulation to freeze the 30 day timetable for filing an independent lawsuit until more information is gathered. Often these stipulations are utilized in order to provide the personal representative with additional time to collect assets, as well as to ensure there are no additional creditors waiting to file claims before the expiration of the creditor period. These stipulations are also helpful in estates where liquidity or insolvency are potential concerns. Florida Statute 733.707, provided below, outlines the categories that creditors must be organized into, as well as outlines the order or priority in which each type of claim must be paid. All highest level claims must be paid first, before moving on to pay lower category claims.

Upon the expiration of the 90 day creditor period, the personal representative should have a complete picture of which claimants are potentially owed money, as well as what assets are available to satisfy those claims. The judge does not review any claim or make a determination as to the validity of the claim unless the claimant brings an adversarial proceeding against the estate. An experienced probate attorney can provide guidance during the probate process, including how best to address any claims that may be file.

733.707 Order of payment of expenses and obligations.—

  • (1) The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order:
  • (a) Class 1.—Costs, expenses of administration, and compensation of personal representatives and their attorneys fees and attorney’s fees awarded under s. 733.106(3).
  • (b) Class 2.—Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.
  • (c) Class 3.—Debts and taxes with preference under federal law, claims pursuant to ss.409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines.
  • (d) Class 4.—Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
  • (e) Class 5.—Family allowance.
  • (f) Class 6.—Arrearage from court-ordered child support.
  • (g) Class 7.—Debts acquired after death by the continuation of the decedent’s business, in accordance with s. 733.612(22), but only to the extent of the assets of that business.
  • (h) Class 8.—All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent’s lifetime, and any excess over the sums allowed in paragraphs (b) and (d).

The probate process can be confusing and tedious, especially just after the death of a loved one. Probate is the legal process in which a judge oversees the administration of an estate to ensure the decedent’s property is distributed to the correct beneficiaries.

The first step in administering an estate and deciding if a probate is necessary, is to identify the assets owned by the decedent. The simplest method of identifying assets is to search the decedent’s mail and/or residence for financial statements or other records. Once the assets are identified, the second step is to determine how those assets are titled, and if any of the assets have designated beneficiaries. Only assets which are titled solely in the name of the decedent will have to go through the probate process, assuming the asset does not have a designated beneficiary, such as a POD feature. Designated beneficiaries can only be utilized for certain assets and are most common for retirement accounts, brokerage accounts and life insurance policies.

There are two general categories of assets:

  • 1.) Probate Assets
  • 2.) Non-Probate Assets

Probate assets are any assets that were owned completely and solely by the decedent at the time of death. The following are potential types of assets that may require probate:

  • – Real property which has been titled only in the decedent’s name, or held as tenants in common;
  • – Bank or brokerage accounts that are titled in the decedent’s sole name;
  • – Personal property, such as furniture, vehicles, jewelry;
  • – Life insurance policies that that don’t have a named beneficiary, or have the name of the decedent’s estate as the designated beneficiary;
  • – A portion or interest of any partnership, LLC, or corporation in which the operating agreement does not address what happens with the assets upon the death of a member.

Non-Probate assets that are allowed to bypass the probate process are those that are owned jointly with other people, or that have designated beneficiaries directly on the account. Examples of non-pronate assets may include the following types of assets:

  • – Retirement accounts;
  • – Property or assets held in a trust;
  • – Brokerage accounts or bank accounts held in joint tenancy, or with a POD or TOD beneficiary;
  • – Life insurance policies;
  • – Any property that is held via tenancy by the entireties, or held in a joint tenancy.

Inheritance can be a once in a lifetime windfall for a beneficiary, but it can also be a sensitive subject with many legal factors to consider. This is especially true when one partner in a marriage is expecting to receive a large inheritance, and the other spouse automatically assumes the assets are now the property of both partners of the marriage. The difference in expectations for how the inheritance is treated may not be such a large issue during the marriage itself, but can become a pivotal issue in any potential divorce proceeding.

The laws regarding what property you must share and what remains your own depend to some degree on whether you live in a community property state or an equitable distribution state. Florida, like the majority of states in the U.S. is an equitable distribution state. Under Florida law, marital property and sole and separate property, such as inheritances, are treated differently during a divorce proceeding.

Marital property is defined as everything earned or acquired during the marriage, by either party—unless you both agree otherwise. The money earned by one or both of you, the car you bought with money from your joint bank account, the home you bought, even the portion of your retirement fund which was added to during your marriage are all considered marital property. Any inheritances received prior to the marriage or during the marriage are considered separate property (non-marital) unless the inheritance is commingled during the marriage.

While the default legal presumption is that inherited assets remain the sole property of the beneficiary who received the funds, it’s important to note that moving those assets into jointly held accounts with your spouse can override that presumption and make those funds subject to division upon divorce. The only other way you can protect your inheritance, making sure you are allowed to retain an inheritance in the event of a divorce, is to diligently avoid commingling. This means you should always keep your inheritance completely separate from your marital assets. Avoid adding your spouse’s name to a bank account holding money you received from an inheritance, or adding your spouse’s name to the property you received from an inheritance. If you plan on making improvements to an asset received as an inheritance, be aware that if you use marital funds to make those improvements, then your spouse may be entitled to at least a portion of the inheritance. If you have already engaged in commingling your inheritance while married, there are specific methods to track contributions, determining what portion of the inheritance is now marital and what portion remains your separate property.

Before assessing whether life insurance or retirement accounts need to go through probate, it is crucial to understand what the probate process is. The probate process is the legal process of retitling assets held in the sole name of the decedent at death, and distributing them to the correctly identified heirs or beneficiaries. The requirements of the probate process will largely be dependent on the relevant laws within the state of last domicile for the decedent. Non-probate assets are those that avoid or bypass the probate process.

Whether life insurance policies or retirement assets must be included in the probate process, will be dependent on whether the decedent completed beneficiary designation forms for the assets, before death. Generally, life insurance policies and retirement accounts will have beneficiaries listed on the paperwork held with the financial institution. The identified beneficiaries can contact the company directly to request the necessary paperwork to effectuate the distribution of the funds. Often a death certificate will also need to be submitted on behalf of the beneficiaries. There are occasionally instances where these assets will have to go through probate to be transferred, such as when there is no beneficiary designation or when the decedent’s estate is listed as the recipient.

The selection of a competent and reliable fiduciary to represent a decedent’s estate or trust can be pivotal in efficiently transferring assets in a timely and cost effective manner. A fiduciary is responsible for safeguarding the assets on behalf of a beneficiary, and has legal responsibilities to act in the best interest of the beneficiaries as well as other interested parties such as potential creditors. A fiduciary for an estate or probate is referred to as an executor, or a personal representative. A fiduciary for a trust is referred to as a trustee.

It is primarily the responsibility of the personal representative or trustee, to ensure that the provisions of the estate planning documents are honored and that the administration proceeds in a timely fashion. Selecting the wrong fiduciary can cause a number of unnecessary delays in the administration process, as well as frustration for the potential beneficiaries. If the beneficiaries are unsatisfied with how the fiduciary is acting, then they have the option of petitioning the relevant court to intervene in the administration, either by ordering the fiduciary to act, or not act, in some way. In extreme situations, an interested party may need to seek to remove the executor or trustee. Whether due to incompetence, negligence, or intentionally malicious activity, getting an executor or trustee removed can be tedious process, requiring discovery as well as hearings in front of the judge. Florida probate code provides a number of potential factors which may require the removal of a fiduciary.

733.504 Removal of personal representative; causes for removal.—A personal representative shall be removed and the letters revoked if he or she was not qualified to act at the time of appointment. A personal representative may be removed and the letters revoked for any of the following causes:

  • (1) Adjudication that the personal representative is incapacitated.
  • (2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
  • (3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
  • (4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
  • (5) Wasting or maladministration of the estate.
  • (6) Failure to give bond or security for any purpose.
  • (7) Conviction of a felony.
  • (8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
  • (9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
  • (10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
  • (11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.
  • (12) The personal representative was qualified to act at the time of appointment but is not now entitled to appointment.

Considering how costly it can be to the beneficiaries to have to deal with the removal of a fiduciary, it is important that the decedent select a competent person for fulfilling his/her wishes with regard to the estate or trust. Selecting a professional, independent personal representative with no beneficial interest in the estate, can go far to reduce tensions between beneficiaries, and to ensure all interested parties are protected.

Probate is required whenever there are assets in the sole name of the decedent. If the decedent owned a piece of real estate in his sole name, or as tenants in common with a co-owner, then probate will be required in order to remove the decedent’s name from the real estate. Probate will be required regardless of whether the decedent left a Last Will and Testament. Probate is the court supervised process for retitling assets and determining the correct beneficiaries to receive the assets.

Often beneficiaries decide to sell the real estate during the probate process. It is always prudent to order a title commitment associated with the real property many months before the proposed closing in order to confirm what documentation may be required from the probate court to clear title. If there is a Last Will and Testament which authorizes the personal representative to sell real property, then an additional order from the probate court authorizing the sale should not be required. If the decedent did not have a Last Will and Testament, an order from the probate court will typically be required in order to clear title. The petition authorizing the sale will include the fair market value of the real estate, the contract for sale, and will be served on all interested parties to the transaction. If there are no outstanding objections to the sale, the judge will issue an order authorizing the sale, and a certified copy of the order will be recorded on the official records during the closing process. Obtaining such orders from the probate court takes time, so it is important understand what orders will be required before setting closing dates on the sales contract. If orders cannot not be obtained prior to the closing date, the buyer and seller must enter into an extension associated with the sales contract.

If the real estate was the homestead of the decedent, there can be additional complications to the closing process. Florida’s state constitution provides special provisions for how a decedent’s homestead is to be treated for purposes of decent and devise. In order to sell a decedent’s homestead property, often quit claim deeds from the intestate heirs to the new owner will be required to complete the closing process. Alternatively, you can obtain an order of homestead determination from the probate court. One problem is that the order of homestead will not be issued until the expiration of the 90 day creditor period, which can significantly prolong the closing process. It’s best to consult an experienced probate attorney from the Florida Probate Law Firm in order to confirm the fastest and most efficient way to sell real estate during the probate process.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

After someone passes away, the property they leave behind can pass to beneficiaries through a few different routes. Generally, there are two broad category of assets, those requiring probate to transfer title, aka probate assets, and those that do not require probate, or non-probate assets.

Probate is required whenever the decedent passes away owning property in his or her sole name. Probate is also required if the decedent owned real property with a non-spouse, as tenants in common. Often the easiest place to begin in determining if the assets requires probate is to look at how the asset is titled.

When it comes to bank or brokerage accounts, check the financial statement to determine how the account is titled. If the account simply listed the decedent’s name there is a good chance it is a probate asset. If you call the financial institution and inform them of the decedent’s passing, the bank will freeze accounts requiring probate administration and will often not release any additional information regarding the account until they receive paperwork from the probate court identifying the personal representative, aka executor, of the estate. Often the financial institution will simply request Letters of Administration or Letters Testamentary, which is a sign a probate will be required in order to move forward. If there is a designated beneficiary, or payment on death feature, the financial institution will begin the process of contracting the named beneficiary, often by sending out a letter to the last known address provided for the beneficiary. If the family has an idea of who the named beneficiary might be, it is advisable to have the beneficiary call the financial institution directly in order to identify themselves, and to request the transfer paperwork be faxed or emailed to them.

When it comes to real estate, aka real property, it will be necessary to check the most recent deed associated with the parcel which is recorded on the official records. Often you begin by identifying the property on the local property appraiser website, which will provide the timeline for sales associated with the property, as well as copies of executed deeds. If the most recent deed is held jointly with a spouse of the decedent, often the ownership qualifies as a tenancy by the entireties, and passes directly to the surviving spouse outside of the probate process. The deed should also be checked to confirm that there is no future remainder beneficiary named to take ownership upon the expiration of a life estate. While this arrangement is not the most common way to title real estate, it is becoming more popular as people consult estate planning attorneys for ways of avoiding probate. In Florida, an enhanced life estate and named future remainder beneficiary identified directly on the deed is referred to as a “lady bird deed”. The lady bird deed is a tool utilized in Medicaid planning in order to preserve the homestead while qualifying the applicant to receive FL Medicaid benefits.

In general, assets that tend to avoid the probate process have one thing in common, they all have someone, or some entity, listed directly on the title who is intended to become the new owner, or intended to control the distribution outside of the probate administration.

If you are having trouble determining whether or not your property, or assets, will have to go through the probate process upon your death, it is important to speak with an experienced probate attorney.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

If you are a beneficiary or a nominated personal represented, aka executor, meeting with a probate attorney is one of the first steps in initiating the administration of the estate.

Before speaking with the probate attorney you should gather the following information:

  • 1.) Did the decedent have a Last Will and Testament, or Revocable Trust? Are there any codicils, or amendments to these documents? Do you have the original executed documents, or do you only have copies of the estate planning documents.
  • 2.) If the decedent had no Will, who are the surviving family members? You need to provide an outline of the family tree, identify any surviving spouse, children or grandchildren. In the event there is no spouse or children, we need to identify the parents and siblings of the decedent. You should gather the full names and mailing addresses of all relevant family members.
  • 3.) What are the assets of the decedent? Are there any pieces of real estate, bank accounts, brokerage accounts, or life insurance policies? The best place to search for this information is to check the decedent’s mail. Provide copies of any financial statements to the probate attorney.
  • 4.) What are the potential debts associated with the decedent? Are there credit card bills or medical expenses? Collect any mail associated with bills or debts of the decedent and provide those to the probate attorney, so those entities can be served with a Notice to Creditors.
  • 5.) Certified or original copy of the death certificate. In Florida, the probate court requires the short form of the death certificate, without the cause of death.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

Family members of the decedent have different rights associated with the estate depending on if they are a named beneficiary in the decedent’s Last Will and Testament, or Trust, which has been submitted to the probate court, or if they qualify as an intestate heir. Any beneficiary who is named in the most recent version of the Last Will and Testament, will receive some form of notice as to the initial petitions seeking probate administration, often via formal notice provided by certified mail. This notice will include identifying the beneficiary’s specific interest in the estate, aka what gift or percentage of the estate they are to receive. The beneficiary will also receive a copy of the Last Will and Testament for review. Any party named in the Will should be provided with an opportunity to object to the petition for probate, or to the appointment of any particular personal representative. As the probate administration progresses, interested parties will be mailed copies of the estate inventory, and eventually the final accounting assuming they are a residual beneficiary and not simply the recipient of a specific bequest. To understand the distinction, let’s say the Will provided someone with a gift of only $10,000. Once the beneficiary receives their gift of $10,000 their interest in the estate is terminated and they will not long receive paperwork associated with the estate, since they are no longer an interested party. If a beneficiary is stipulated to receive 10% of the estate then they qualify as a residual beneficiary, and they have an interest in receiving all accountings associated with the probate because any expenses of the probate inevitably effect the value of their final distribution.

A named beneficiary will have the right to challenge the Will within three months of receipt of the notice of administration. They will also have the right to seek to remove the personal representative, or executor, at any time during the proceeding. The removal of a fiduciary is considered a measure of last resort for the probate court, reserved for only the most serious situations often involving illegal conduct.

Family members that are not included in the Will admitted to probate, but would otherwise qualify to inherit in the event there had been no Will are known as intestate heirs. Intestate heirs have the right to challenge any Will being submitted to probate, but they won’t always be notified of the passing of the decedent or that a probate is being initiated. Intestate heirs are encouraged to file a caveat with the appropriate probate court in order to confirm that they will receive notice of any pleadings submitted on behalf of the estate. Once notice is received, the intestate heirs can hire an experienced probate attorney to explore their options for challenging the Will.

Family members that are not included in the Will admitted to probate, but would otherwise qualify to inherit in the event there had been no Will are known as intestate heirs. Intestate heirs have the right to challenge any Will being submitted to probate, but they won’t always be notified of the passing of the decedent or that a probate is being initiated. Intestate heirs are encouraged to file a caveat with the appropriate probate court in order to confirm that they will receive notice of any pleadings submitted on behalf of the estate. Once notice is received, the intestate heirs can hire an experienced probate attorney to explore their options for challenging the Will.

The most important family member, who is empowered with a variety of statutory rights is the surviving spouse of the decedent. Typically the surviving spouse is provided for in the Last Will and Testament of the decedent, usually receiving a large portion, if not all, of the estate. In the event the surviving spouse is not provided for, or is provided for minimally, he or she has a number of elections they can make during the probate proceeding including the elective share, family allowance, exempt property, homestead election, or pretermitted spouse status.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

The closing of the estate signifies the end of the probate process and involves the discharge of the personal representative, aka executor. It is prudent to always obtain an order of discharge in order to cut off any potential liability associated with the personal representative or the attorney on record for the estate. Every county has slightly different procedures or requirements for closing an estate.

The final pleadings involved in closing an estate will be a petition for discharge, a final accounting and a statement regarding creditors. The final accounting will identify any assets coming into the estate, any and all expenses associated with the administration, as well as any increase and decrease in the value of assets. The final accounting will be served via formal notice on all residual beneficiaries, unless the beneficiaries execute a waiver and consent to the discharge of the personal representative, specifically waiving the right to receive a final accounting. In the event there are unpaid creditors of the estate, the final accounting will also be served on those creditors, often informing them that the estate is insolvent.

The petition for discharge will typically include a proposed plan of distribution of estate assets according to the provisions of the Last Will and Testament, or intestate statutes. In order to expedite the closing process, most estate beneficiaries receive some type of informal accounting of what assets are left in the estate after the payment of administrative expenses, such as attorney’s fees, and will execute a full waiver to consenting to closing the estate. The waivers are very common, since they allow the beneficiaries to receive their inheritance without further delay.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

Planning for end of life is often an uncomfortable subject to address. Establishing your estate plan and confirming how assets are to be divided and distributed amongst various parties can be a tedious task. Selecting the correct person to be in charge of your estate is pivotal, since that person will be responsible for initiating the probate process and enforcing the provisions of the Will. Probate administration is simply the legal process for retitling assets that belonged to the decedent into the names of the correct beneficiaries. The personal representative, aka executor, will be appointed by the probate court to begin the process of administering the estate, which entails identifying and collecting the estate assets, creating an inventory, initiating the creditor period, and eventually making distributions. The role of the personal representative comes with a great deal of power and discretion to act on behalf of the estate, but also a large amount of responsibility.

First and foremost, a personal representative is there to protect and secure, as well as accumulate all of the probate assets. Probate assets are only those items which are titled in the sole name of the decedent, without a joint owner or a designated beneficiary. Second, the personal representative will initiate the 90-day creditor period in which potential creditors can file claims in the estate for money that is owed to them by the decedent. The personal representative will review each claim to confirm the legitimacy of any and all creditor claims that materialize during the probate process. The personal representative is not personally liable for the debts, but instead he or she is responsible for utilizing the decedent’s assets to pay the debts, as required by Florida Statute or court order. Lastly, the executor is there to ensure that the final distribution of the assets is accomplished as stipulated in the decedent’s Last Will and Testament.

Being empowered to collect assets, pay administrative expenses and eventually responsible for making distributions, puts the executor in an extremely influential position. As such, a person looking to name a personal representative in their estate planning documents, must look for someone reliable and trustworthy to serve in the role. Ideally, you want someone who is familiar with the beneficiaries of the estate and who will treat all interested parties fairly. You also want someone who is capable of expeditiously moving forward with the administration, since unnecessary delays will only increase the likelihood of disputes, as well as increase costs of the probate proceeding. If you don’t have a family member, or close friend, that fits the bill, you should consider appointing a professional personal representative, such as an attorney from the Florida Probate Law Firm.

Having a competent personal representative, aka executor, nominated in your estate planning documents will go a long way to ensuring your wishes are honored as far as the distributions of your estate are concerned. However, not just anyone can be appointed as a personal representative by the probate court. There are a few rules that must be adhered to, and it is important to know all of the fundamental elements of the probate process to fully understand who should and can be appointed as a personal representative, aka executor.

In order to be appointed the nominated party must be:

  • 1.) Over the age of 18
  • 2.) Non felon (must not have any felony convictions)
  • 3.) Must be a Florida resident, or if a non-resident he or she must be a family member of the decedent.

It is important to note that the specific limitations as to who may be appointed as personal representative are in place to help ensure that a responsible party will be put in charge of the estate’s finances and will treat all interested parties fairly.

Typically, the nominated personal representative, aka executor, is someone close to the decedent, generally a family member or relative that is also a beneficiary of the estate. In Florida, the executor will owe a fiduciary duty to the estate and should be someone that can live up to this duty. Sometimes more than one person will serve jointly in the role of co-personal representatives.

When a person, agrees to be appointed as the personal representative of a particular estate, they will be required to execute an Oath of Personal Representative in which they swear to follow all applicable laws in order to administer the estate. If the personal representative breaches his fiduciary duty to creditors, or to beneficiaries, the personal representative can be sued on behalf of the estate in order to address the grievance. In extreme situations, the personal representative can even be held personally liable for damages to the estate. For example, if the personal representative collects $1,000,000 of estate assets into a bank account in the name of the estate, and then flees the country with all of that money, the beneficiaries can sue the personal representative and that person will be personally liable for up to $1,000,000, which should have come into the estate.

A personal representative should also execute an Affidavit of No Felony Convictions. If it is discovered that the personal representative does in fact have a felony record, such information should be presented to the probate court and the judge will remove the acting personal representative.

The simple answer is that there will need to be a separate probate proceeding in each state in which the decedent owned real property, aka real estate. If the real estate was owned in the sole name of the decedent, only the appropriate court in each state can authorize the distribution or sale of real property owned by a decedent in that particular state.

Upon the death of the decedent, the proper procedure is to first initiate the domiciliary probate in the state in which the decedent was domiciled at the time of death. Often the last known address listed on the death certificate is utilized to determine which state is the appropriate venue for the domiciliary proceedings. A petition for probate will be filed in the county of last residence. The domiciliary probate will control all real property located in that state, as well as all tangible and non-tangible personal property located anywhere in the United States. The vast majority of estate property is generally controlled by the domiciliary probate, including most liquid assets such as bank and brokerage accounts.

Any real property, aka real estate, owned in a state other than the domiciliary state, will require a second probate initiated in that other state, referred to as an “ancillary probate proceeding.” The ancillary proceedings should always start after the domiciliary probate is underway, since exemplified or certified copies of the domiciliary proceedings will be filed in the ancillary states. In order to obtain clear title to potentially sell the real estate while in the name of the estate, or at some future time, a title company will require that the necessary probate proceedings be conducted to document proper chain of title. It is not uncommon for families to avoid the probate process for many years after the death of a family member, choosing to instead live in the home without removing the decedent’s name from the house. The family is then forced to conduct a probate many years down the road when it comes time to sell the piece of real estate. Waiting extended periods of time to initiate the probate process can create significant problems, chief among them is the possibility that beneficiaries will also pass away, which can create a situation in which multiple probates must be conducted simultaneously in order to clear title.

To start, let’s understand what the probate process entails. Probate, or probate administration, is the process of retitling assets held in the sole name of the decedent, into the names of the appropriate beneficiaries, or alternatively the process of having the probate assets sold and the proceeds distributed among the appropriate beneficiaries. Probate occurs whenever there are assets held in the sole name of the decedent and those assets have no joint owners or designated beneficiaries. One common misconception is that probate will be required whether the decedent left a Will, or died without a Will.

The probate process can unfortunately be time consuming and expensive. In Florida, all formal probate administrations must include a 90-day creditor period in which potential creditors can file claims against the estate. Due to this requirement formal probates at a minimum will remain open for approximately 4 months, but on average most probates will stay open anywhere from 7-9 months. Probate assets should never be distributed before the creditor period has expired and all creditor claims have been dealt with appropriately. All litigation against the estate should also be settled prior to any distributions. The procedure for closing the estate involves the creation of an inventory and a final accounting, which documents all administrative expenses accumulated via the probate process. The final accounting must be served on all beneficiaries via formal notice and each interested party will have 30 days to contest the accounting. If the beneficiaries are interested in expediting receipt of their share, they can each sign a waiver of the final accounting, consenting to the discharge of the personal representative.

Probate is the court-supervised process of collecting and gathering the decedent’s assets, paying off any debts or taxes associated with the decedent, and then distributing the remaining assets to the appropriate beneficiaries. The final distribution of assets is generally done in accordance with a Last Will and Testament left behind by a decedent, and overseen by the personal representative, aka executor, appointed by the probate court. The typical procedure is to initiate a probate, whether formal or summary, in the county of last residence for the decedent. For example, if the decedent’s last known residence was located in Boca Raton, then the probate pleadings will be filed in the circuit court of Palm Beach County. Similarly, if the decedent’s last known residence was in Fort Lauderdale, then the pleadings will be filed in Broward County. The clerks will rely on the death certificate in determining the correct address for purposes of determining what county to file in. If the last known address on the death certificate is incorrect, the family may need to amend the death certificate.

Any estate that has estimated assets greater than $75,000 will necessitate a formal probate administration. In Florida, all formal administrations require an attorney to be hired, and that attorney will act as “attorney of record” for the estate, guiding the personal representative through the process of administering the estate. Attorneys with the Florida Probate Law Firm will guide you through the probate process, and will be responsible for tracking deadlines and filing the necessary pleadings with the probate court.

Depending on the state where the probate is being conducted, the amount of information readily available online differs. Florida requires that all probate pleadings be e-filed with the correct circuit court and as such the docket associated with any particular proceeding can be located on the relevant clerk’s website. Every county has the option of establishing their own method for e-filing documents, as well as how much access to give the general public via the Internet. All counties will allow the public to view the content of pleadings on computers available at the local courthouse, and will also mail you copies of pleadings if a request is made in writing. Certain counties will also allow the general public to access most pleadings online, but its best to check with the clerks in your particular county for the local rules and procedures.

Certain pleadings are automatically deemed to be confidential such as the inventory and final accounting, since those documents often contain sensitive financial information such as bank or brokerage account numbers. These pleadings will only be available to interested parties to the proceeding.

When a family member passes away, whether foreseen or by accident, the collateral damage can be straining. It isn’t unusually for potential creditors to attempt to coerce family members to pay off the bills or debts that were accrued by the decedent during life.

With regard to the decedent’s creditors, it’s important to know that family members or beneficiaries are not responsible for paying off the decedent’s debts. As long as the bills were in the sole name of the decedent, the correct procedure is for the creditors to file claims in the estate during the 90-day credit period. Depending upon the supporting documentation for the claim, the personal representative will be able to object to, negotiate or otherwise settle the claim on behalf of the estate. Only valid claims will be paid, and those claims are only entitled to be satisfied utilizing probate assets. It’s important that family members do not pay creditors from their own personal funds, unless there is a particular reason to do so. If there are no probate assets to enter the estate, the estate is considered insolvent and all creditors go unpaid.

There are certain expenses that beneficiaries should consider keeping current throughout the probate proceedings, even prior to opening the estate. Examples of these types of expenses include:

  • 1.) Insurance premiums for homeowner or car insurance
  • 2.) Electricity and utilities associated with real estate owned by the decedent
  • 3.) Past due mortgage, COA or HOA fees (only to prevent foreclosure)

Check out our Creditor Claims page for more information.

If you are unsure how to handle the debt of a loved one who has passed away, contact the experienced probate administration attorneys at Florida Probate Law Firm in Boca Raton.

When a formal probate administration is initiated, pleadings will be filed with the relevant circuit courts having jurisdiction over the decedent’s estate. Once the clerks accept the pleadings, they will be placed on the court’s docket and assigned a case number. Anytime after a case number has been assigned, a potential creditor can file a claim against the estate. Most claims are composed of a single piece of paper identifying the creditor, the amount owed and the underlying reasons for the claim, sometimes with supporting documentation.

The clerks will mail any creditor claims directly to the attorney representing the personal representative of the estate. The personal representative is in charge of reviewing such claims in order to determine if they are legitimate and how to respond. The personal representative can request supporting documentation from the claimant to confirm the amount owed, can negotiate with the creditor for some type of settlement, or can potentially object to the claim. If the claim is objected to, the creditor will have 30 days from the receipt of the objection in order to initiate a separate civil suit against the estate in order to enforce the claim. If the claimant does not initiate a suit within the 30 day time period, the claim is barred. It’s prudent for the personal representative to obtain an order striking the claim once barred.

As the probate process can be lengthy, stretching over a number of months, probate assets are often tied up until the end of the administration process. This can often create liquidity challenges for the personal representative and potential beneficiaries, so it’s important to understand from the outset which assets will be included in the probate process. There are two general categories for classifying assets: “Probate Assets” and “Non-Probate Assets”.

Non-probate assets are assets that are able to bypass the probate process entirely. These assets are generally already designated to be controlled by a specific party, either by being jointly owned, or having a designated beneficiary. Such examples would be:

  • 1.) Retirement accounts where a beneficiary is named
  • 2.) Property held in joint tenancy
  • 3.) Property that is owned as tenants with a spouse
  • 4.) Property titled in the name of a trust, with a designated successor trustee

Probate assets are titled in the sole name of decedent. Some examples of these assets are items such as:

  • 1.) Bank and brokerage accounts with no designated beneficiaries
  • 2.) Vehicles and boats titled in the decedent’s name
  • 3.) Personal property items, such as jewelry
  • 4.) Assets owned by a single member LLC, or corporation

As time goes on, and families drift apart, it is not uncommon to see siblings and parents all living in different states, or even different countries. Once someone passes away, in order to prepare the pleadings for the probate court, the petition must provide the full names and mailing addresses of all potential beneficiaries. Often the petition must provide an outline of the relevant family tree. While it’s easiest if the petitioner already has the correct contact information, there are certain public records searches which can assist in identifying the correct information.

Real estate can often be the most significant asset left behind when a family member or friend passes away. Determining if the probate process is required in order to sell or transfer the decedent’s residence is the first assessment the personal representative should make.

Any assets titled in the sole name of the decedent at the time of death, with no joint owners and no beneficiary designations, will be required to pass through the decedent’s estate, via the probate process. This rule of thumb applies to real estate, as well as all other types of assets such as bank and brokerage accounts. Real estate does not require probate in order to transfer if the parcel meets any of the following:

  • 1.) Titled jointly with rights of survivorship, or via tenancy by the entirety.
  • 2.) Titled via a life estate deed with a named beneficiary (FL refers to this as a Lady Bird Deed).
  • 3.) Titled in the name of a Trust.

Probate is merely the court supervised process for retitling the decedent’s assets and transferring them to the correct beneficiaries, either via a Last Will and Testament or intestate proceedings. In most estate proceedings, beneficiaries decide to sell the decedent’s residence and have the proceeds allocated among them. A Last Will and Testament often has a provision authorizing the personal representative to sell real estate, but when a Will does not exist for the decedent, the court must issue an order authorizing the sale to an identified buyer. Such an order will be required by the title company in order to clear title.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

One of the first steps to settling an estate is determining what assets are left behind by the decedent, and categorizing those assets depending on how they are to pass to beneficiaries. Assets are allocated into the following general categories:

    • 1.) Probate Assets
    • 2.) Non-Probate Assets
      • a. Jointly Held Properly
      • b. Beneficiary Designations
      • c. Trust Assets

Probate is the legal process of retitling assets in order to remove the decedent’s name and to distribute those assets to the correct beneficiaries, often identified in a Last Will and Testament. Non-Probate assets escape the probate process and are not subject to the provisions of a Last Will and Testament. All non-probate assets have the common characteristic of having a named beneficiary or named fiduciary directly associated with the assets which takes precedent over how those assets will be distributed upon the death of the initial owner.
If you are having trouble determining whether or not your assets will require probate upon your death, it is important to speak with an experienced probate attorney. An experienced and well-versed probate attorney can ensure no loopholes or gray areas exist within your estate plan and will ensure your beneficiaries can skip over the lengthy process involving the probate court.
Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

If you are a beneficiary or an appointed executor, meeting with a probate attorney is part of the process of administering the estate of the decedent. The attorney will help you determine what will be required to wrap up the decedent’s affairs. Sometimes the decedent will have done the necessary planning prior to death, so that no probate administration is required. Often some form of probate will be necessary, either a formal probate administration in which a personal representative, aka executor, is appointed, or a summary administration to transfer one or two assets directly to designated beneficiaries. In certain cases, a probate may not be necessary, but a trust administration must be conducted.

It is recommended that you begin collecting relevant documents before speaking with the attorney, including:

  • 1.) Original Will and Codicils, or copies (if available).
  • 2.) Trust Documents, including Amendments and Restatements.
  • 3.) Original Death Certificate (short form without the cause of death).
  • 4.) Copies of any documents related to financial assets in the sole name of the decedent, including financial statements for bank accounts and insurance paperwork.
  • 5.)Full contact information for beneficiaries and executor(s), including full names and mailing address.

While the original Will is not necessary in order to initiate the probate process, its always preferable that the original Will be utilized in the probate process. Also having a copy of the death certificate available can expedite the process, but the attorney can always order these on your behalf. Lastly, it is important to bring a written list of the names, addresses, and contact information of any of the decedent’s children, relatives, or family members.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

The rights of surviving family members will largely depend on the laws of the state which control the probate administration. Assuming the decedent was a residence of the state of Florida at the time of death, the probate administration will be initiated in Florida.

If the decedent left a Last Will & Testament, that document will identify the intended beneficiaries of the estate, as well as nominate someone to serve as personal representative, aka executor. The Last Will & Testament may have specific language authorizing or restricting the rights of the beneficiaries, as well as the executor. Examining the provisions of the Last Will & Testament and/or Revocable Trust is an important starting point for determining rights. If the decedent left more than one Last Will and Testament, the most recently executed document will generally control.

Outside of the estate planning documents, family members will have certain rights available to them via Florida statutes. When someone dies without a Will, the state’s intestacy statute identifies default heirs to the estate known as intestate beneficiaries. Anyone that qualifies as an intestate beneficiary is granted legal standing to contest the provisions of a Last Will and Testament which is submitted to probate. Any beneficiaries named in previously executed estate planning documents also have the standing to contest.

Family members, especially children of the decedent, are often surprised to learn that a parent is entitled to disinherit any and all of their children. The only family member that cannot be totally disinherited is the surviving spouse, unless some type of prenuptial or postnuptial contract was executed. The surviving spouse of the decedent is the family member granted the most statutory rights which can potentially affect the probate administration. A spouse is entitled to the following:

  • 1.) Elective Share
  • 2.) Homestead Rights
  • 3.) Family Allowance
  • 4.) Exempt Property
  • • Florida elective share statute empowers the surviving spouse to elect to receive 30% of the elective estate, which includes the probate estate plus additional non-probate assets.
  • • Homestead rights guarantee that the spouse is entitled to a life estate in the decedent’s homestead residence, or they can make an election to force the sale of the residence and collect 50% of the proceeds from the sale.
  • • Family allowance is composed of payments to support the surviving spouse while the probate administration is ongoing, capped at $18,000.
  • • Exempt property is composed of tangible personal property located in the decedent’s residence, as well as one vehicle, that go directly to the surviving spouse outside of probate and are not subject to creditor claims.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

While the probate process has many benefits such as clearing title issues and eliminating liability associated with potential creditors, there are some people that would prefer their family members not have to deal with the tediousness and time delays inherent to the probate process. In Florida, the most frequently utilized technique for avoiding probate is to establish a revocable trust to hold title to the decedent’s assets prior to death.

Besides the use of a revocable trust, a person can attempt to place beneficiary designations on all assets, which has the effect of acting as a payment on death, POD, feature in order to avoid probate. While POD provisions on bank and brokerage accounts can be set up directly with the financial institutions holding the funds, the process of establishing beneficiary designations for real estate can be more complex. It is advisable to employ an attorney to draft a “lady bird deed,” or a deed held jointly with rights of survivorship, in order to guarantee that a piece of real estate will be transferred properly after the death of the decedent, without engaging the probate court to authorize the sale or transfer. Any deed will need to be properly executed and recorded prior to death in order to avoid probate.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040

Many people have never heard the world probate, until they must deal with a death in the family. Probate, by definition, is the “official proving or establishment of validity of a Last Will and Testament left by a decedent, if the decedent had a Last Will and Testament.” In broader terms, probate is the court supervised process necessary to transfer or retitle assets held in the name of the decedent to the identified beneficiaries, either via a Last Will and Testament or intestate statutes.

The probate process provides a venue in which creditors can file claims for debts they are owed associated with decedent, as well as a forum in which beneficiaries can work out any conflicts that may exist as to their inheritance. A common issue that is addressed during a probate proceeding is a Will contest for either undue influence or lack of testamentary capacity.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

Ancillary Probate

Probate is typically initiated in the state in which the decedent was domiciled at the time of death. When the administration is initiated in the home state of the decedent, it is referred to as the domiciliary probate administration. The domiciliary probate will control all tangible and intangible probate assets, as well as real estate located in the domiciliary state. Any real property owed by the decedent in a state other than the domiciliary state, will require an additional probate to be initiated in the subsequent jurisdiction. For example, if a NY resident has homes located in NY, FL and CA, upon his or her death there will most likely be a domiciliary probate initiated in NY, and two subsequent ancillary administrations, one in FL and the other in CA. The same concept generally applies to decedents that own real property in multiple countries. Since every state and county has its own requirements for probate, its important to consult with a knowledgeable attorney in the state or country where the real property is located.

For more information about Ancillary probate, visit our Ancillary Probate page.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

During a formal probate administration, the court will appoint a person to serve as fiduciary of the estate. The fiduciary oversees administering the estate, collecting assets, handling creditor claims and eventually making distributions to the identified beneficiaries. In Florida, the fiduciary in charge of the estate is referred to as the “personal representative.” Other states use the term executor (male), executrix (female) or administrator but they all refer to the same role. Executor is the term utilized for testate estates, those with a Last Will & Testament, while the term administrator is often utilized for intestate estates, those without a Last Will & Testament.

For more information about professional executors or personal representatives, visit our professional executor page.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

There are three types of probate proceedings in Florida, but only two of them are available to the vast majority of estates. The proceedings include:

  • 1.) Formal Administration
  • 2.) Summary Administration
  • 3.) Disposition Without Administration

A formal probate administration is available for any sized estate, but is required when assets of the decedent exceed $75,000. A formal probate is the only type of proceeding in which a personal representative is appointed as the fiduciary of the estate. The personal representative has authority to collect the decedent assets and deposit them into an estate bank account, as well as request financial and medical records associated with the decedent from various institutions. The powers granted to a personal representative via a formal administration can be extremely valuable especially when the decedent’s assets may be unknown, or when the family is contemplating some type of lawsuit on behalf of the estate.

As summary administration is only available to estates with assets under $75,000. This type of administration involves the judge issuing a single order transferring identified probate assets directly to the name beneficiaries. This type of administration is preferred for estates that only involve one piece of real estate that is being transferred directly into the name of one or two beneficiaries. Summary administrations do not involve a personal representative, so there will be no one with legal authority to request documentation from banks or medical institutions. Summary administrations also require the client to identify full account numbers and VIN numbers for probate assets which can be difficult to obtain, if you don’t already have access to the decedent’s home and records.

Disposition without administration is only available to estates in which the probate assets are less than the funeral bill and expenses from the last 60 days of the decedent’s illness that resulted in their death.
Visit our Probate Litigation page or our Florida Probate page for more information.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

In an ideal scenario, the original version of the Last Will & Testament will be deposited with the court when probate proceedings are first initiated. In the event that the original Last Will & Testament cannot be located, a copy can be submitted to the court and a few additional pleadings will need to be submitted in order to verify the authenticity of the document. In order for a copy of a Will to be admitted to probate in Florida, one of the witnesses that was present for the original execution must execute an “Oath of Witness” attesting to the authenticity and this document must be signed in front of a probate clerk, often forcing the witness to travel to the local courthouse. If the witness is located out of state, then a commissioner can be appointed to act in lieu of the probate clerk. A commissioner is just a title given to a notary that has been designated and approved by the probate judge to take the Oath of the Witness.

Most families are advised to look for the decedent’s Last Will & Testament in the following places:

  • 1.) The decedent’s home or last residence
  • 2.) Safe deposit box leased by the decedent
  • 3.) The attorney’s office which drafted the estate planning documents

Family members are often surprised to learn that Florida has no central depository for Wills to be held prior to the death of the decedent. While traditionally the estate planning attorney’s office would hold onto the original Wills for their clients, the more modern practice is to release the original documents to the client once the documents are executed and services are complete. If the Last Will & Testament is never found and it is believed that the original Will was last in the possession of the decedent, the default legal assumption is that the testator intentionally destroyed the Will. In this scenario, the surviving family members should move forward with initiating an intestate probate proceeding. If a Will is subsequently discovered, it can be deposited with the court and the judge will decide if it should be admitted to probate.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.

A will contest is when a named beneficiary, or an intestate beneficiary, challenges the validity of the documents submitted to probate, often the Last Will and Testament and sometimes the revocable trust.  Often the beneficiary initiating the will contest is a spouse or child who disagrees with the way the will disposes of certain assets.

The most common grounds upon which a will can be contested in Florida are the following:

  • Lack of Testamentary Capacity
  • Undue Influence
  • Improper Execution

The best way to avoid a will contest is to obtain good legal advice in the preparation of the will and/or estate plan.  When you do so, you can explore the reasons why someone might contest the will, and then take steps to counter any potential challenge.  To counter a challenge regarding the testator’s mental capacity at the time of execution, it may be prudent to have the testator analyzed by a psychologist or psychiatrist the day of the execution ceremony, in order to draft a report attesting to his or her competence.  Alternatively, to counter a challenge of under influence, the testator may draft a separate memorandum, or potentially create a video recording, explaining why he or she disinherited certain people and implemented the distribution scheme incorporated into the recently create will.  Contact our experienced probate attorneys for more information.

The most common grounds for contesting a will are the following:

  • Lack of Testamentary Capacity
  • Undue Influence
  • Improper Execution
  • Under Florida law, the testator must have the mental capacity to

    • Understand the nature and extent of his or her assets;
    • Be able to identify the persons, and understand his relationship to the persons, whom would stand to benefit from his or her will;
    • A general understanding of the practical effect of the executed will.

    Evidence for establishing a lack of testamentary capacity can be supported by many factors, such as a diagnosis of dementia or some other type of mental impairment.  Undue Influence is another popular ground for trying to overturn a will.  In order to establish a presumption that undue influence occurred the challenger must establish the following:

    • The personal accused of undue influence received a substantial benefit under the will;
    • The person accused of undue influence possessed a confidential relationship with the decedent;
    • The person was active in the procurement of the will.

    Active procurement means that the person was involved in the process of drafting and eventually executing the will.  Florida case law, specifically the Carpenter case, provides guidance in articulating seven non-exclusive factors to assist in determining whether active procurement existed:

    • Presence of the beneficiary during execution of will;
    • Presence of the beneficiary at time when testator expressed a desire to make a will;
    • Recommendation by the beneficiary of an attorney to draw the will;
    • Knowledge of the contents of the will by the beneficiary prior to execution;
    • Giving instructions on preparation of the will by the beneficiary to the attorney drawing the will;
    • Securing of witnesses to the will by the beneficiary; and
    • Safekeeping of the will by the beneficiary subsequent to execution.

    If you anticipate that someone might seek to contest your will on the basis of lack of capacity or undue influence, working with a Florida estate planning attorney to document the rationale for the way your will disposes of your assets may help prevent someone from successfully contesting your will.  Contact our experienced probate attorneys for more information.

Three common scenarios that lead to a will or trust being contested are disinheriting children, including illegitimate or non-marital children as beneficiaries, or leaving a large percentage of your estate to a charity.  Of course, these scenarios are not the only scenarios that can lead to a will or trust being contested.  They are simply three common scenarios.

When a will or trust is contested, the most common grounds for contesting the will is lack of testamentary capacity and undue influence.

Under Florida law, the testator must have the mental capacity to understand his or her assets and know to whom they will be distributed.  Often, lack of capacity is shown through a medical diagnosis of dementia around the time the will was created.  Another ground is undue influence.  This is most commonly alleged when a testator changes the beneficiary of his or her will to someone unexpected, such as a new caregiver.

If you anticipate that someone might seek to contest your will on the basis of lack of capacity or undue influence, working with a Florida estate planning attorney to document the rationale for the way your will disposes of your assets may help prevent someone from successfully contesting your will.

Generally, you have three months from receiving Notice of Administration in order to contest the will.

Florida law has specific rules that govern when a person can contest a will.  The general rule is that, a person has 90 days after receiving the Notice of Administration to initiate a will contest.  Notice of Administration is a specific form generated by the attorney on record handling the probate administration and is mailed out to interested parties via certified mail.

A typical Notice of Administration will include the following language:

Any interested person on whom a copy of the notice of administration is served is required to file any objection that challenges venue or jurisdiction of the court with the court in the manner provided in the Florida Probate Rules WITHIN THE TIME REQUIRED BY LAW, which is on or before the date that is 3 months after the date of service of a copy of the Notice of Administration on that person, or those objections are forever barred. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by section 733.212(3), all objections to venue or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.

If you have a suspicion that the nominated personal representative, aka executor, is not a responsible or trustworthy party, then you might consider one of the following courses of action from beginning of the probate process:

  • Object to their appointment as personal representative and offer an alternative party to act;
  • Petition for the creation of a restricted depository estate account.

Petitioning for a restricted depository is an extremely effective means of monitoring the personal representative.  When a restricted depository is created, no money can be removed from the estate bank account without a court order issued by the probate judge.  Every time the personal representative wants to remove any money, he or she must petition the court and provide notice to all interested parties, including other beneficiaries. The beneficiaries will have an opportunity to object to any request.  While the restricted depository creates a high level of supervision and ensures liquid assets of the estate will not be squandered, it also creates significant administrative burdens including time delays and increased legal fees.

In the event that the personal representative has already been appointed and has free reign over the estate bank account, the fastest way to remedy an out of control fiduciary is to petition the probate court to remove the personal representative and to appoint a successor. Interested parties, such as beneficiaries and creditors, may petition the probate court to remove the personal representative.   Florida probate code 733.504, provides twelve scenarios in which the personal representative may be removed:

(1) Adjudication that the personal representative is incapacitated.

(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.

(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.

(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

(5) Wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose.

(7) Conviction of a felony.

(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.

(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.

(12) The personal representative was qualified to act at the time of appointment but is not now entitled to appointment.

 

As noted earlier, the law gives an appointed personal representative a strong advantage in probate litigation, since the appointed personal representative can pay legal fees from the estate while the person seeking to remove the personal representative must pay their legal fees out of pocket.  This alone could determine the outcome of the contest, even if the person seeking to remove the personal representative has a strong argument that he or she should be removed due to a conflict of interest.

There is no way to absolutely prevent probate litigation over your estate after you pass away.  The reason for this is that you cannot control the actions of your beneficiaries, nor can you control the actions of potential creditors of your estate.

However, it is possible to take steps to greatly reduce the risk that there will be probate litigation over your estate and maximize the chances that the assets in your estate will be distributed according to your wishes.  The best way to avoid probate litigation is to contact an estate planning attorney during your lifetime and do proper planning in order to assess whatever risk there might be for probate litigation after your death.

An experienced estate planning attorney can review your entire situation, including your family dynamic (children, spouse, ex-spouse, spouse’s children, etc.) and your detailed financial situation.  Once that assessment has occurred, your experienced attorney will be able to foresee areas that could likely result in probate litigation. He or she can then work with you to minimize those risks.

Yes. In Florida, every will should be filed with the clerks of the Florida circuit court in the county of last residence for the decedent, since this is the correct venue for initiating the probate proceeding.

Contact our experienced estate administration attorneys for more information regarding your situation.

Probate Duties FAQs

Anyone that is considered to be an “interested party” to the estate proceedings may initiate the probate proceedings. Florida law defines “interested person” to mean “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” This definition is fairly standard across states and is not unique to Florida. Interested persons may have a financial stake in the estate or a legal obligation to the estate. One situation in which an interested person other than the personal representative or a beneficiary may want to initiate the probate process is when the estate has more debts than assets. In that situation, the beneficiaries have little incentive to start the probate process as they will likely not receive anything from it, so the estate’s creditors may decide to intervene to begin the probate process in order to recover whatever assets they can.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

Any interested party can begin the probate process for any particular estate. Oftentimes it’s the person nominated to act or the personal representative, aka executor, in the last will, who will get the ball rolling and start the probate process. The person nominated to serve as the personal representative, must accept the position and be officially appointed by the probate judge. It’s the personal representative’s job to hire an attorney to represent them during the probate process. That attorney will be designated as the attorney on record for the probate proceedings, and will guide the personal representative through the probate process, while being responsible for tracking deadlines and filing the necessary pleadings, such as the inventory and final accounting.

The “personal representative” is typically an individual person. Florida law imposes certain limitations on who is able to serve as personal representative. For example, someone who is under 18, is mentally or physically unable to fulfill the duties of a personal representative or has been convicted of a felony cannot act as personal representative in Florida. In addition, to qualify to serve as a personal representative, an individual must be either a Florida resident, or must be a close familial relative of the decedent. An individual person who is not domiciled in Florida, and who is not a closely related family member of the decedent, cannot be appointed to serve as personal representative. If a non-resident is erroneously appointed, once the court is notified that he or she is actually not qualified, the judge will remove the personal representative and appoint a successor.

The personal representative of an estate can also be a bank or trust company in certain circumstances. A trust company incorporated under the laws of Florida, or a bank authorized and qualified to exercise fiduciary powers in Florida, can also serve as the personal representative.

States other than Florida sometimes don’t use the term “personal representative,” but use other terms such as “executor,” “executrix,” “administrator,” or “administratrix.” All of these terms essentially refer to the same role.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

A personal representative or an executor of an estate has a number of duties imposed by Florida law, but there are three duties that are considered to be the most important.

  1. The first is the gathering of the assets of any particular estate such as bank accounts, brokerage accounts, and real estate.
  2. The second is assessing the debts of the decedent, satisfying or negotiating those debts, and handling any tax liability.
  3. The third is making final distributions to the identified beneficiaries of the estate, either those parties named in a Last Will and Testament or identified via the FL intestate statutes.

The personal representative’s other duties under Florida law include:

  • Publishing a “Notice to Creditors” in a local newspaper to give notice to potential claimants to file claims against the estate.
  • Serving a “Notice of Administration” to provide information about the probate estate administration to interested parties.
  • Conducting a search to locate “known or reasonably ascertainable” creditors and giving these creditors notice of when their claims must be filed.
  • Objecting to improper claims brought against the estate and defending against any lawsuits associated with such claims.
  • Employing professionals to assist in the administration of the probate administration such as attorneys, accountants, appraisers, and investment advisers.
  • Paying any expenses of administering the probate estate.
  • Paying any amounts required by law to be paid to the decedent’s surviving spouse or family.
  • Closing the probate estate once the probate process is completed.

Some of these additional duties are already included in the principal three duties described at the top of this section.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

Typically, the Last Will and Testament designates whether a bond is required or not. Often, you see that the Will waives any bond requirement, but the judge can decide for themselves whether they feel a bond is appropriate for any particular personal representative or estate.

A bond is somewhat similar to an insurance policy that protects interested persons in the probate estate from potential damage caused by a personal representative. This damage can include a breach of fiduciary duty, fraud, or other issues.

Different probate courts in Florida tend to have different bond requirements. Some courts almost always require a bond, even if the Will specifically states that a bond is not required. Other Florida courts take a case by case approach, and may only require a bond under particular circumstances such as when the personal representative is not a Florida resident.

If a court does require a bond, the judge will decide the amount of the bond required according to criteria set forth in Section 733.403 of the Florida Statutes. The criteria to be considered include “the gross value of the estate, the relationship of the personal representative to the beneficiaries, exempt property and any family allowance, the type and nature of assets, known creditors, and liens and encumbrances on the assets.”

The cost of a probate bond depends principally on the amount of coverage that is required. The price of the bond is based on the total amount of the estate that the personal representative has to administer. The bond premiums are often calculated at one-half of one percent (0.5%) of the estate value, which comes out to $500 for every $100,000 of estate assets.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

A personal representative must hire an attorney in order to initiate a formal probate administration in all Florida counties. A personal representative is only appointed during a formal probate administration. The judicial system does not allow a non-attorney personal representative to represent themselves for the simple reason that the probate process is too complicated for a lay person to navigate alone, and more importantly during any probate proceeding there are multiple interested parties which need to be protected. During the probate process, creditors are considered interested parties and need to be provided proper notice and opportunity to present and defend claims. There are also a number of deadlines and required filings that must be submitted and served on multiple parties, which will be the responsibility of the attorney on record to handle.

The probate court system has a great deal of state rules, but also local rules which differ in each county. Some of these rules are unwritten and can only be learned through practicing law in the various probate courts day in and day out. Even licensed attorneys who do not specialize in probate law can have trouble navigating the probate court system efficiently and effectively.

Even if the Florida courts did allow personal representatives to administer an estate without the assistance of an attorney, doing so would not be a prudent idea. As stated previously, the probate process includes many specific requirements for the filing of documents with the court, including what must be filed, when it must be filed, who must receive notice of filings, etc. Because a personal representative can be personally liable for damage caused to an estate or interested persons because of the misadministration of the probate process, it would be imprudent to attempt to administer an estate as a personal representative without the guidance and help of an experienced Florida probate attorney. Check out our experienced team of Florida probate lawyers on our team page here.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

Yes, in the state of Florida, as in many other states, the personal representative is entitled to a fee for the services they rendered. Often the personal representative that is selected in the will is also a beneficiary of the estate and a family member of the person who has passed away. Very often, such a personal representative will waive any fee that he or she might be able to take. However, Florida statutes do authorize the personal representative to receive reasonable compensation for the services provided to the estate.

The reason a personal representative is entitled to a fee is because a personal representative has numerous obligations under Florida law and fulfilling those obligations is a lot of work.

The amount of the fee to which a personal representative is presumptively entitled is set forth in a schedule in the Florida Statutes:

  • 3% of the first $1 million
  • 2.5% of the value between $1 million and $5 million
  • 2% of the value between $5 million and $10 million
  • 1% of the value exceeding $10 million

The Florida Statute also allows a personal representative to receive additional compensation for “extraordinary services” such as the sale of real property, the conduct of litigation, the carrying on of the decedent’s business, dealing with a protected homestead, etc.

It is important to note that if the will provides for a different calculation of compensation for a personal representative, that calculation will generally apply instead of that set forth in the statute.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

You do not have to serve as a personal representative of an estate just because you are nominated in the Last Will & Testament. You are free to waive that responsibility completely. If you choose not to serve and you execute a renunciation of the appointment, the next person in line to serve is often named as a successor directly in the document. If there is no successor named in the document, or if that person is not capable or chooses not to serve, the judge will follow guidelines set forth in the probate statute for selecting someone to appoint.

The Florida probate statute sets forth an order of preference for whom the court should appoint as personal representative if the person named in the will chooses not to serve. In such a situation, the person selected by a majority of the beneficiaries to serve, will have preference in being appointed. If the beneficiaries cannot agree to any particular person to serve in the role, the judge will use their discretion to appoint a professional fiduciary, such as a non-interested attorney, to serve.

The bottom line is that the person nominated as a personal representative does not need to serve and the law includes a variety of means for the court to select an alternate person to serve as personal representative.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

The person named as personal representative or executor in the will has an option to serve or not to serve. If they make the choice not to serve, they can execute a renunciation which is a pleading that notifies the court that they decline the position.

The Florida Statutes include guidelines for the court to select a different personal representative if the person nominated by the will chooses not to serve. The bottom line is that the person nominated as a personal representative does not need to serve and the law includes a variety of means for the court to select an alternate person to be personal representative.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

In the state of Florida, the probate court does not supervise the daily activities of the personal representative. Probate is a court-supervised process, but the court does not direct or supervise the personal representative’s day-to-day activities. The personal representative has many time-consuming duties imposed by the probate statute and it would be simply impossible for a court to supervise the daily activities of the personal representative even if it wanted to do so.

This absence of daily court supervision is one reason that it is so important for a personal representative to hire the appropriate professionals to aid with the fulfillment of his or her statutory duties.

There are several incentives for a personal representative to act responsibly even in the absence of court supervision. For example, the beneficiaries of the estate can petition the court to remove the personal representative and replace him or her with a different personal representative. This removal will likely have a negative effect on the personal representative’s ability to collect his or her fee at the end of the probate process. In addition, the personal representative can be sued personally by beneficiaries or creditors of the estate if he or she fails to perform the personal representative duties responsibly.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

A personal representative is entitled to a fee under Florida statute and that fee must be “reasonable.” There is a statutory formula for determining reasonableness. The amount of the fee to which a personal representative is presumptively entitled is set forth in a schedule in the Florida Statutes:

  • • 3% of the first $1 million
  • • 2.5% of the value between $1 million and $5 million
  • • 2% of the value between $5 million and $10 million
  • • 1% of the value exceeding $10 million

The Florida Statutes also allow a personal representative to receive additional compensation for “extraordinary services” such as the sale of real property, the conduct of litigation, the carrying on of the decedent’s business, dealing with a protected homestead, etc.

Note that if the will provides for a different calculation of compensation for a personal representative, that calculation will generally apply instead of that set forth in the statute.

Many personal representatives who are related to the decedent do not take a fee in order to avoid conflict with other beneficiary family members. This approach is completely understandable. However, there is a reason the statute entitles a personal representative to a reasonable fee: acting as an estate’s personal representative is a lot of work!

We recommend that personal representatives who are thinking of waiving the statutory compensation simply track the amount of time their work as a personal representative takes to complete. Then, as their duties as a personal representative come to an end, they can decide whether or not they will take their fee. They may decide that they want to receive their statutory fee after all.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

Yes. In Florida, a personal representative must hire an attorney to assist with the probate process. The probate courts do not allow a personal representative to represent themselves because the probate process is too complicated for a lay person to go through without assistance. Judges and county clerks cannot teach a lay person the law.

The probate court system has many complex details, rules, and practices. Some of these rules are unwritten and can only be learned through practicing law in the various probate courts day in and day out. Even licensed attorneys who do not specialize in probate law can have trouble navigating the Florida probate court system efficiently and effectively.

Probate court judges and the officials who assist them are often overworked and understaffed. They simply do not have the time or patience to walk untrained persons through the multiple technical steps and complicated filings that must be completed.

Even if the Florida courts did allow personal representatives to administer an estate without the assistance of an attorney, doing so would not be a prudent idea. As stated previously, the probate process includes many specific requirements for the filing of documents with the court, including what must be filed, when it must be filed, who must receive notice of filings, etc. Because a personal representative can be personally liable for damage caused to an estate or interested persons because of the misadministration of the probate process, it would be unwise to attempt to administer an estate as a personal representative without the guidance and help of an experienced Florida probate attorney. Check out our team of experienced attorneys with more than 35 years of experience handling probate cases on our team page.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

In general, the answer is “no.”

For example, if a decedent dies with $30,000 of credit card debt, the beneficiaries of the estate do not become liable personally for that credit card debt. However, the personal representative will have to first pay the credit card debt from probate assets before any distributions can be made to the beneficiaries. When the estate’s outstanding debts exceed its assets, there will be nothing left to distribute to the beneficiaries.

If you are a nominated personal representative, or beneficiary, you are not obligated to pay the debts of the decedent. Do not pay any debts associated with decedent or the estate before consulting an experienced probate attorney.

Call Florida Probate Law Firm at 561-750-1040 today for a free consultation to discuss your probate, trust, and estate administration needs today!

Yes.  Probate litigation can be expensive. You will have to pay the hourly rate of one or more attorneys working on your case, plus filing fees and other court expenses.  Depending on the type of case, there can be additional expenses such as expert witnesses, etc.

In addition, probate litigation is not always predictable.  You and your attorneys may need to respond to filings and motions made by the personal representative and potentially other parties.  Some of these motions and filings may be unreasonable and excessive.

If you are a personal representative being sued in your capacity as personal representative, you will most likely be able to pay your legal fees from the probate assets collected on behalf of the estate. However, if you are a beneficiary suing the estate, you will be paying your legal fees out of pocket which can create a significant burden.