What rights do surviving family members have in probate?

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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 stateís 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 decedentís 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 decedentís 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 561-210-5500.

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