Florida Probate - Probate in Florida

Florida Probate - Probate in Frequently Asked Questions

What is Probate? - Probate is the legal process of settling a deceased person's estate, which includes paying creditors or debts, and distributing the assets of the deceased to the correct beneficiaries. It is a complicated procedure, which must be followed explicitly, so that when a beneficiary inherits assets, they will be free from future claims.

Who is authorized to serve as Personal Representative of an Estate? - If there is a valid Will, the person who is appointed in the Will is usually named as Personal Representative, unless they have been convicted of a felony or if they are not a family and live out of state. If there is no Will, normally the appointment of personal representative follows a hierarch. The surviving Spouse is usually the first choice for appointment of personal representative; second would be the person selected by a majority of interest of the heirs; and then possibly the heir nearest in degree to the decedent's prior residence. If more than one heir qualifies, then the Court could be used to select the best candidate possible.

Who may file for Probate in Florida? - Any creditor or beneficiary of an estate can legally file for a Probate. However, if the decedent left a Last Will & Testament (Will), then the Personal Representative (a/k/a Executor) named in that Will usually initiates the Probate. On the other hand, if no Will was ever executed by the decedent, or if it cannot be located, then normally a close relative will file for the probate.

If a child lives out of state do they have to travel to Florida to probate their parent's estate who lived in Florida? - No, that is not usually necessary. 1800Probate handles this type of matter across the state of Florida no matter where the Personal Representative resides. The exception to this is if there is a contested issue between several beneficiaries and then a hearing in Florida may be required. Even then, most of the time the attorney may attend the hearing in person and the beneficiary by long distance telephone.

What is considered a "Valid Will" in the state of Florida? - First, the Court will usually only accept the original copy of a decedent's Will, in order to ensure its validity. An authenticated copy of a Will can be admitted to probate, but can be a lengthy process, and the copy is not guaranteed to be accepted. It must always contain the signature of the decedent and two (2) attesting witnesses. The attesting witnesses must sign the Will in the presence of the decedent and in the presence of each other (FS 732.502 tells the Florida rules on Execution of Wills).

Do I need a lawyer to Probate in Florida? - In the majority of probate cases, a lawyer is needed to complete the process in a timely, and legally efficient manner. Except for "Disposition Without Administration" for very small estates (See Florida Statute Section 735.301) and those estates in which the Personal representative is the sole beneficiary, an attorney is required. Even if an attorney is not required it is important to remember that the probate process has many technical rules. That can be very frustrating for someone to probate an estate without a lawyer. Also, without a legal background, there are many pitfalls which can result in beneficiaries not receiving their inheritance for all time and free from creditors. Consequently, the assistance of an attorney is always worthwhile.

Does my Probate Attorney need to be in the same County as the decedent? - No, the Probate Attorney usually does not have to be in the same County as the decedent's residence. A Florida Probate lawyer can handle cases in any County of the state, as probate documents can all be handled via mail. However, there is some litigation, or will contest cases, that may require the Attorney to be present for Court hearings. In these cases it would be best to hire a lawyer local to that County.

How much does probate cost in Florida? - All cases will vary, depending upon the complexity and other issues, but many attorneys charge either a flat rate fee, or will charge according to the Florida Statutes, which state that the following fees are reasonable and may be paid by the personal representative without Court order. FS 733.6171 Compensation of attorney for the personal representative:

• Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.
• The attorney, the personal representative, and persona bearing the impact of the compensation may agree to compensation determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation and if no objection is made as provided for in the Florida Probate Rules.
• Compensation for ordinary services of attorneys in formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:
  
  
  • (a) One thousand five hundred dollars for estates having a value of $40,000 or less
  • (b) An additional $750 for estates having a value of more than $40,000, but not exceeding $70,000.
  • (c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
  • (d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
  • (e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
  • (f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
  • (g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
  • (h) At a rate of 1 percent for all above $10 million.

Attorney's fees are a necessary expense of Probate and come off the top. The Personal Representative and Attorney may also negotiate a lesser fee such as a flat fee. Ask your attorney what the fee will be upfront but remember "You usually get what you pay for".

What Assets are subject to Probate? - Some assets of the deceased will not need to go through probate. These types of assets include assets that were owned jointly (such as real estate owned as "Joint Tenants with Rights of Survivorship"), assets that are POD (payable upon death) to someone, or those accounts or assets with a named beneficiary on the account. All other assets, no matter how minimal they may be, are required to go through probate.

How are the assets distributed when there is no Will? - Estates to be probated without a Will are called "intestate" estates. The Florida Probate laws set forth rules for distribution of an intestate estate in Florida Statute 732.102 which basically states:

• When there is a surviving spouse, and no lineal descendants (children), then the entire estate is distributed to the spouse.
• If there is a surviving spouse and lineal descendants, and all lineal heirs are also all children of the surviving spouse - then the surviving spouse in entitled to the first $60,000.00 of the estate assets, plus one-half (1/2) of the remaining estate assets. The lineal descendant then equally share the remaining portion of the estate.
• If there is a surviving spouse, and lineal descendants of the decedent; but not all of the lineal heirs are also children of the surviving spouse - then the lineal heirs are entitled to one half of the estate assets, and the surviving spouse is entitled to the remaining half.
• If there is no surviving spouse, and there are lineal heirs (children) of the decedent - these children will equally split/share the estate. If there are any deceased children, then the deceased child's lineal heirs will then split/share the deceased's portion of the estate.
• In cases where there is no surviving spouse, and no lineal heirs, then the Court has particular rules addressing the line of heirs, and their priority.

How long does Florida Probate take? - Most nontaxable estates take from 6 to 12 months for a formal administration. It is important that you have an attorney who concentrates their practice on probate as this will help make the process run quickly and smoothly. If you get a lawyer not familiar with probate, their process can take several years. If it is a very large estate, the estate cannot be closed until the IRS signs off on the estate tax return and this can take approximately 2 years.

If one parent died leaving a surviving parent and all assets are owned jointly (bank accounts, house) is there a need to go through Probate? - No. Jointly held assets between husband and wife as usually survivorship assets which means the surviving spouse takes them automatically at the decedent's death. Other assets like Insurance, IRA, etc. that have a pay on death clause pass outside of Probate. It is important when one parent dies to make certain that all assets are survivor assets and also to use this discussion time to develop an estate plan and appropriate advanced directives (Living Will, etc.) with your surviving parent to avoid later problems.

Is it ever too late to start Probate? - No. There is no actual deadline in the State of Florida. If a family has kept the property taxes paid, there are no tax deeds granted, you may probate the estate for many decades. This may prove more complicated and expensive because, of course, over time there may be a need to do several probates due to the death of the initial heirs or even the children and grandchildren of the initial heirs. It is of course, easier to do probate initially but it can be done even at a later date.

Florida Articles written by A 1800 Probate Lawyer for counties in Florida

Florida Articles written by A 1800 Probate Lawyer for cities in Florida

Florida Articles written by A 1800 Probate Lawyer for Probate Courts in Florida