David S. Luber is a Hollywood Florida Probate Attorney with a law office in Broward County and an Estate Planning Master of Laws Degree. The law firm focuses on Florida Probate, Wills and Estate Law.
He can reached to assist with any of the above areas at 954 920-2886
FLORIDA PROBATE LAW
1. WHAT IS FLORIDA PROBATE?
Florida Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
Florida probate statatutes provide for two types of probate administration:
A. Formal Administration and
B. Summary Administration
Formal Administration is the primary method used to probate estates in Florida. If the Florida decedent has died within the past two years and the decedents property remaining in their sole name has a value in excess of $75,000 or a will directs formal administration then a formal administration will typically be required. A personal representative is appointed based on who is named in the decedents valid will admitted to probate and whether that individual(s) qualifies to serve as personal representative or based on order of priority based on Florida intestate laws.
An individual personal representative must be a Florida resident or a close relative of the decedent as defined by Florida probate statutes to serve as personal representative of an estate. They also must be at least 18 years of age, not have been convicted of a felony and be of sound mind to act. Assuming these do not present a problem and there was a will the probate of which is not being contested or challenged the named personal representative will be appointed by the judge.
If there is no will the Florida intestate laws for the appointment of the personal representative provide that if there is a spouse they will have priority to serve as the personal representative. If there is no spouse then the nearest in degree such as a child or children will have the priority. Although multiple personal representatives may serve if one child is local and and another is in another state it may be make sense for the local personal representative to serve. Having a local personal representative serving may also prevent the estate from being required to have to obtain a personal representatives bond.
A Notice to Creditors must be published with a publication circulating in the county of the decedent one a week for two consecutive weeks. This provides notice to all unknown or unacertainable creditors and provides them with 3 months to submit statement of claims to the probate court or forever be barred while any creditors who are known or reasonably ascertainable creditors have the longer of 30 days from service to 3 months from the date of initial publication. If a statement of claim is submitted that the personal representative objects to they can investigate and inquire regarding the validity of the claimed debt and then either pay it, settle it for less then is being asked for or object to the statement of claim. They can object by filing a formal objection and serving the creditor. If this is done the creditor must follow up with an independent action enforcing the claim or the debt will likely not be valid any longer if not pursued in a timely manner. All such claims against the estate must be resolved through either payment, settlement or objection (and if the indepedent action is lost the estate must pay the claim according to the terms the court finds it to be owed).
The Personal Representative gathers and collects all the assets assets of the decedents estate. They must preserve and protect the assets of the estate.
Taxes will need to be paid for the decedents final income tax return, a 1040 tax return, as well as possibly an estate or trust income tax return a 1041 tax return, and if the decedent had assets worth $3,500,000 as of 2009 regardless of whether they were in their probate estate then an estate tax return which is a 706 tax return would need to be filed. The personal representative will pay these taxes and likely write the check from the decedents estate checking account but unless they are an accountant or knowledgeable in this area they should seek professional assistance in filing and preparing the tax returns.
Florida law also establishes a nonadministration proceeding called "Disposition of Personal Property Without Administration."
2. IS AN ATTORNEY REQUIRED FOR ALL PROBATE ADMINISTRATION IN FLORIDA?
Yes Florida law almost always requires an attorney be involved. Florida law requires an attorney represent the Personal Representative/Estate for all probate matters except the disposition of personal property without administration.
The reason is that the Florida statutes many legal issues arise, even in the most basic estate administration and therefore the state by statute requires that an attorney be involved.
The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative represents the estate and is not the attorney for the beneficiaries.
3. What are the assets of the estate that are subject to probate? What are examples of assets which are not probate assets?
The probate assets are those assets in the decedent's sole name at death. Assets that are owned so they will pass by operation of law such as joint tenants with right of survivorship or transfer on death accounts, or by contract such as insurance proceeds that pass a named beneficiary other then the estate are not probate assets.
4. WHY IS PROBATE REQUIRED?
Probate is needed to finish up the affairs of the decedent and properly retitle the assets to whom they should pass. Probate laws have been in force in Florida since 1845. Florida statutes have default provisions also known as the intestate rules which apply if the decedent dies without leaving a valid will and has property in their sole name. The decedent has the authority to make decisions regarding their property that is in their sole name by leaving a valid will.
5. WHAT ARE SOME WAYS TO AVOID PROBATE?
There are a number of ways to avoid Florida probate among the most common ways to avoid Florida probate are by having property funded in a revocable trust which passes the property to named beneficiaries, through transfer on death accounts which automatically pass upon the death of the account holder to their named beneficiaries or by contract such as an annuity, 401k plan or insurance policy.
6. How should a life insurance policy be titled? Are there any ways to use life insurance to help save estate tax?
An insurance policy should always name a beneficiary other then the estate in order to avoid probate. Insurance proceeds are not taxable from an income tax perspective when the beneficiaries receive them although they are generally included in the decedents estate to determine if the decedent owed any estate tax. Currently there is an estate tax exemption of $3.5 million per decedent (although if passing to a spouse it may only be a deduction and deferral if proper tax planning is not done) if a decedent has property exceeding this amount it will likely be taxed at rates starting above 40%. If an irrevocable life insurance trust were to be setup so the decedent no longer had incidents of ownership of the property they could have the trust provide who the property would go to and still exempt the full amount of the insurance trust from any estate taxes. A half million dollar policy that would all otherwise be subjected to tax in an irrevocable life insurance trust can save a couple hundred thousand that would otherwise have to be paid in taxes thereby increasing the amount of property to be passed on to friends and loved ones.
6. WHAT IS A WILL?
A will is a writing, signed by the decedent who is 18 years of age or older who has the mental capacity regarding what they are doing and that is signed by two witnesses and a notary. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee and naming a guardian for minor children. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the default provisions provided in Florida intestacy law. Without a valid will, or if the will fails to properly dispose of all of the assets, then Florida statutes provide who shall receive such property. In the absence of a direction regarding the naming of a personal representative the default provisions of Florida law controls. A will does not help avoid Florida probate. A will only becomes effective upon the death of the testator - person disposing of their property at which time the property in their sole name requires probate for to the assets to reach the designated beneficiaries or the title to be changed to their name.
7. ARE DETAILS OF PROBATE PROCEEDINGS KEPT PRIVATE?
No, the details of a probate administration are a matter of public record and have few privacy protections. This is one of the benefits of having a revocable trust. The distribution of and property properly funded in the trust is a private matter unlike probate proceedings.
8. WHO RECEIVES THE PROPERTY THAT WAS LEFT IN DECEDENTS NAME IF THERE IS NO WILL?
Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse receives everything.
Surviving spouse and lineal descendants.
If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.
If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.
No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.
9. WHO IS INVOLVED IN THE PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often involved in the probate process:
Attorney for the Personal Representative or co Personal Representatives
Clerk of the Circuit Court
Circuit Court (acting through a Circuit Court Judge).
Claimants (People owed money or claiming to be owed money)
Surviving Spouse, Children and/or other beneficiaries
Florida Department of Revenue
Internal Revenue Service (IRS)
10. WHERE ARE PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, for the county where the decedent lived or owned property. In Broward County the court is located at 201 S.E. 6th Street, Fort Lauderdale, FL 33301. In Miami-Dade the Probate Court is located at 73 W. Flagler Street Miami, FL 33130. A filing fee must be paid to the clerk to start the probate administration. The clerk assigns a file number (such as 05-0000) and maintains a docket sheet which lists all papers filed with the clerk for that probate administration. In the Broward County Probate Court and the Miami Dade County Probate Court the filing fee to start the probate administration is $400 for a formal administration and $346 for a summary administration. The probate courts charge $3 for a 1 page certified copy.
11. WHO SUPERVISES THE PROBATE ADMINISTRATION?
A Circuit Court Judge presides over probate proceedings for the county in which the decedent was domciled. For example a Circuit Court Judge for the probate division of Broward County Probate Court supervises all probate matters for people who died domiciled in Broward while a Circuit Court judge in Palm Beach County supervises the Palm Beach Probate process for Palm Beach County decedent estates.
The probate court judge appoints the personal representative and issues Letters of Administration. Letters of Administration show the authority of the personal representative to act. When necessary such as a probate contest, will challenge, dispute regarding property listed on the probate inventory or an uncontested matter heard ex parte with just the attorney representing the personal representative present the Judge holds hearings to resolve all questions raised during the hearings and the administration of the Florida probate estate and enters orders which are written directions regarding what may be done during the estate administration and whether certain legal standards have been met or whether documents are authentic.
12 WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
The personal representative is generally a person, but may also be a bank or trust company. The personal representative is appointed by the court to be in charge of the administration of the estate.
The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
Identify, gather, value and safeguard Florida probate assets.
Publish a notice to creditors in a local newspaper authorized to publish legal notices in that county. (Broward Daily Business review, Palm Beach Daily Business Review frequently serve this publication requirement in South Florida Probate cases)
Conduct reasonable search to locate known or reasonably ascertainable creditors and serve them with notice as potential creditors and give them notice of the time in which they must file their statement of claim with the probate court.
They must also give notice of the administration of the estate or obtaining waivers from doing so from the surviving spouse if any and other beneficiaries or heirs and giving notice of requirements to file any objections relating to the estate.
Review any statement of claims that are filed and either pay legally enforceable claims, settle claims which may be in question or object to claims if not valid and require the claimant to bring suit to enforce. The PR will defend the estate from such suits and if determined to owe pay any such valid debts.
Hire appropriate professionals to assist with the estate administration. Each estate will vary regarding what will be needed but other then the attorney some advisors which may be needed to assist include appraisers, accountants and investment advisors.The personal representative is responsible for having the tax returns filed and paying any taxes which the estate owes or the decedent owed. Tax returns which frequently must be filed are the decedents final income tax return, the estate income tax return and in the case when all of a decedents property exceeds $3,500,000 or more as of 2009 an estate tax return also known as 706 estate tax return.
If a spouse elects against a will or estate and files for an elective share this 30% amount must be paid to them. Also a court may allow an estate to pay up to $18,000 for a family allowance to a spouse and or minor children of the decedent.
Once the property has been gathered, the creditors have been resolved and the creditor period has expired and taxes have been paid or money has been withheld to pay the taxes of the estate then the personal representative should distribute the assets to the estate beneficiaries and petition to close the estate.
13. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
If the decedent prepared a valid will the named personal representative nominated in the will has preference to serve as long as they are legally qualified to serve as the personal representative.
If the decedent did not leave a valid will, the surviving spouse if any has preference, with the person selected by a majority in interest of the heirs having a secondary preference.
14. WHO CAN BE A PERSONAL REPRESENTATIVE?
The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative if they are at least 18 years of age, have not been convicted of a felony and have not been declared lacking mental capacity.
A Trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.
15. IS A PROVISION IN A WILL NAMING A PARTICULAR ATTORNEY BINDING ON THE PERSONAL REPRESENTATIVE?
No a statement in the will is just an expression of preference. The named personal representative may select whoever they want to help the estate in the probate administration. Florida law explicitly does not require the attorney if any named in the will be chosen. The named personal representative should select someone they have confidence in being able to assist the estate and them in their capacity as personal representative and being in charge of settling the estate and someone they would like to work with during the probate process. The probate process will last a few months at a minimum and it is important that the personal representative feel comfortable with the attorney who assists them. Finding a probate attorney that is knowledgeable, accessible, experienced and helpful will make their role as the personal representive a lot easier to complete the estate administration.
16 ARE THERE ANY RESTRICTIONS ON THE FREEDOM OF THE TESTATOR TO PASS ON THEIR PROPERTY HOWEVER THEY CHOOSE TO DO SO?
Yes. As a matter of public policy Florida law has restrictions on the decedents absolute right to transfer their property. Unless there is a pre or post nuptial agreement a surviving spouse has both homestead rights and a right to an elective share. If the decedent is the decedent is survived by a spouse the spouse regardless of how they attempted to transfer their primary residence which was homestead reality a life estate would pass to the spouse with the remainder going to the children. If there are minor children but no spouse the decedent is also not able to pass on the property but it will go to the minor children.
If a husband and wife own their Florida homestead as tenants by the entireties that is not homestead property. It would pass with right of survivorship to the spouse.
If the surviving spouse is was given less then 30% of the decedents elective estate (essentially being the full value of property the decedent owned whether or not it was subject to probate) they may choose to exercise elective share rights and take 30% of the value of the decedents property. The elective share was significantly revised in October of 2001. The old law provided that the property which was computed in determining the elective share was merely the probate estate so through putting property in trust or owning property with right of survivorship the elective share could be eliminated. The legislature felt that defeated the intent of the elective share law and therefore expanded the scope so it could not be easily avoided like probate can.
The spouse and minor or dependent children may also be entitled to receive up to a total of $18,000 for a family allowance to sustain them during the administration of the estate.
Also if a testator prepares a will then gets married subsequently and fails to revise their will or prepare a codicil and remains married to the spouse at their passing the surviving spouse would be what is called a pre termitted spouse. This means that they are entitled to a full share as a spouse as if the property passed by intestacy. This would allow the spouse to receive at least 50% of the property if their was a child of the decedent who was not also her child or 50% plus $60,000 if there were children who were all her children as well. If there were a spouse but no children in this circumstance the spouse would receive 100% of the property as a pretermitted spouse. If children are born after the preparation of a will and no codicil is prepared likewise the children are entitled to their share they would have received according to intestacy laws. They receive that property because of the application of the pre termitted children rule.
17 ARE NO CONTEST CLAUSES IN WILLS ENFORCEABLE?
No Florida law provides that a testator may not provide that a beneficiary loses their share of the property that was provided for them if they contest the will. The will contest will have no bearing on their right to what had been left for them. A no contest clause is merely a statement of intent and may be nice for the beneficiaries to respect but Florida statutes provide that no contest clauses are not enforceable for Florida estates. Since this law presumes it would not be good policy to punish people for pursuing their rights Florida will contests are allowed with no penalties for seeking to obtain what one should receive. A will contest attorney can therefore be retained and pursue probate litigation on an heir or beneficiaries behalf without them being concerned that they will lose what they currently are entitled to as a result of challenging the validity of the will in probate court.
18 CAN A WILL BE CONTESTED AND WHAT ARE COMMON REASONS FOR CONTESTING A FLORIDA WILL?
Yes a Florida will can be contested through Florida Probate Litigation. Some common reasons to contest would be if a beneficiary or heir felt that the testator lacked testamentary capacity at the time the will was executed. If someone is unable to recall the names of their spouse or children, does not know whether they are worth $1 or $1 billion or what state they are in would all pose significant questions of lack of testamentary capacity. Someone may have capacity at one moment but not at others if someone is ill and on a lot of medication this may impair their capacity. The execution of the document is the time that is assessed. Testamentary capacity is a low standard that is usually met although there are some circumstances which could lead to successful challenges due to the lack of testamentary capacity from a Florida testator.
Undue influence is also reason for challenging a Florida will and retaining a probate litigation attorney. People sometimes exert undue influence to obtain gifts from Florida testators who are elderly, sick, or weak. To be considered undue influence, a person's mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the influences of persons in close confidential relations with him or her, that he or she is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another. Undue influence is one of the more common reasons to contest a Florida will. Through proving the elements of undue influence mentioned above along with a beneficial result a Florida will contest attorney or Florida Will Contest lawyer can prove to the probate court during the will contest and probate litigation and have the probate court set aside the portion of the will that was impacted by the undue influence. A will contest can re establish the heir or beneficiaries inheritance rights.
A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. No action to contest the validity of a will may be taken prior to the death of the decedent as the will has no force or effect until the death of the testator.
Unfortunately it is necessary at times to dispute a will and contest the wills provisions based on one of the reasons mentioned above or some other legal rational. An experience probate litigation attorney who understands the basis for undue influence, diminished capacity and the other reasons for challenging a will and can provide aggressive representation to ensure that your rights are maintained can be very useful to give piece of mind that a person gets what they are entitled to. Losing a friend or loved one is a sad enough time and should not be compounded by the thought that one is losing property rights they were legally entitled to.
18 WHAT IF A TESTATOR DOMICILED IN FLORIDA OWNS REAL ESTATE IN OTHER STATES IS THAT CONTROLLED BY A FLORIDA PROBATE COURT?
No if a Florida tesator owns a home, condo, or land in another jurisdiction in their sole name that other state would need to have an ancillary administration. Therefore if for example a Florida decedent also had a home in Southern California, a piece of vacant land in Chicago Illinois, a condo in Philadelphia Pennsylvania, and a commercial building in Manhattan, New York. Then an ancillary probate administration would be needed in the Los Angeles Superior Probate Court, or whatever South California county the home was located in, an ancillary administration for the estate administration of the Cook County piece of land in Chicago would be needed, as well as an ancillary administration required for the Philadelphia Pennsylvania condo and an additional ancillary administration for the probate in New York would required. Each Ancillary proceeding would need an attorney licensed in that state and would have a different probate judge overseeing the matter. This would be a situation where a trust should be used. If the title to each of the pieces of real estate were titled in the name of the trust which was a Florida trust there would be no need for any of the ancillary administration proceedings.
19 CAN A PERSONAL REPRESENTATIVE RECEIVE A FEE FOR SERVING? CAN TAXES IMPACT THE DECISION OF WHETHER TO DO SO?
Yes a personal representative in a Florida estate may receive a fee. There is a presumed reasonable fee of 3% of the probate estate for serving as a personal representative. If the personal representative were the only beneficiary and would otherwise be receiving the property through inheritance it would not be a good idea though for them to take a few unless it was a taxable estate for estate tax purposes. This is because the amount received as a personal representative's fee is taxable income for services rendered and is included in their income at their ordinary income rate. If they receive it as an inheritance it will likely not be taxable. Only the increase in value subsequent to the date of death of decedent would be subject to income tax. The income tax rate will always be lower then the estate tax rate though and the amount paid to the personal representative is a deduction on the estate tax return so if the estate is taxable on an estate tax return (form 706) because the decedent owns $3,500,000 or more in property as of 2009 then it would make sense from a tax perspective to take a fee.
20 DOES DIVORCE IMPACT PROVISIONS IN A FLORIDA WILL?
Yes any provisions made for the benefit of an ex spouse in most cases will not longer be enforceable. Florida Wills statute 732.507 provides any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
FLORIDA PROBATE LAW
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