Frequently Asked Questions

Frequently Asked Questions – Answers

What is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

What are the different types of probate in Florida?

There are two types of probate administration under Florida law: formal administration and summary administration. Summary administration is allowed when the value of all non-exempt property is less than $75,000, or the decedent passed away MORE than 2 years ago. It is also necessary to have all information (account numbers, life insurance policies,etc) up front in a summary administration. There is also a non-court supervised administration proceeding called ‘Disposition of Personal Property Without Administration.’ This type of administration applies only in limited circumstances.

Do I need an attorney to probate an estate in Florida?

Probate Administration often involves complex considerations that need the guidance of an experienced estate planning and probate attorney. As a result, the Florida Statutes and Court rules require the assistance of a Florida attorney to administer a Florida Formal Administration estate. There are different kinds of probate administration available in Florida. A Florida probate attorney can advise you as to what kind of estate needs to be opened in the Florida courts depending on the assets in the estate at the time of the decedent’s death.

What are probate assets?

Probate administration applies only to probate assets. Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For example:

· A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.

· A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.

· Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.

· Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive, but is intended to be illustrative.

What is the estate’s obligation to creditors

One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to ‘known or reasonably ascertainable’ creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

Why is probate necessary?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

What are the rights of a decedent’s surviving family?

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30 percent of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds before final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney.

What rights do other potential beneficiaries have?

Except as provided in the immediately preceding section, a Florida resident has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift of, for example, $1.00.

What is a will?

A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.

What happens if there is no will?

Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the probate assets of a decedent who died intestate.

If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):

· If the decedent was survived by a spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents and more remote descendants.

· If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

· If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

· If the decedent was not married at the time of death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by that child’s own descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.

· If the decedent was not married at the time of death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.

· Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

Who is involved in the probate process?

Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:

· Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.

· Circuit court judge.

· Personal representative (or executor).

· Attorney providing legal advice to the personal representative throughout the probate process.

· Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.

· Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and sometimes as to federal gift, estate or generation-skipping transfer tax matters.

Where are probate papers filed?

The decedent’s will, if any, and certain other documents required to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county in which the decedent lived at the time of death. The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. (S. 732.901, Florida Statutes.) There is no fee to deposit the will with the clerk of court. However, a filing fee must be paid to the clerk upon opening a probate matter. The clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

In the interest of protecting the privacy of the decedent’s beneficiaries, any documents that contain financial information pertaining to the decedent’s probate estate are not available for public inspection.

Who Supervises probate administration?

A circuit court judge presides over probate proceedings.

The judge will rule on the validity of the decedent’s will, or if the decedent died intestate, and will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate estate.

If the decedent had a will that nominated a personal representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated personal representative meets the statutory qualifications, the judge will issue ‘Letters of Administration,’ also referred to simply as ‘letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

If any questions or disputes arise while administering the decedent’s probate estate, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written direction called an ‘order.’

What is a personal representative, and what is the role?

The personal representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term ‘personal representative’ is used instead of such terms as ‘executor, executrix, administrator and administratrix.’

The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:

· Identify, gather, value and safeguard the decedent’s probate assets.

· Publish a ‘Notice to Creditors’ in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.

· Serve a ‘Notice of Administration’ to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.

· Conduct a diligent search to locate ‘known or reasonably ascertainable’ creditors, and notify these creditors of the time by which their claims must be filed.

· Object to improper claims, and defend suits brought on such claims.

· Pay valid claims.

· File tax returns and pay any taxes properly due.

· Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisers.

· Pay expenses of administering the probate estate.

· Pay statutory amounts to the decedent’s surviving spouse or family.

· Distribute probate assets to beneficiaries.

· Close the probate estate.

If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.

Who can serve as a personal representative?

The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.

To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, or mentally or physically unable to perform the duties, or have been convicted of a felony.

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 the personal representative.

What are the typical costs associated with Probate?

The personal representative, the attorney and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

The personal representative’s compensation is usually determined in one of five ways: (1) as set forth in the will; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation; (4) the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (5) as determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways: (1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee; (2) the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (3) as determined by the judge.

How long does probate take?

It depends on the facts of each situation; some probate administrations take longer than others. For example, the personal representative may need to sell real estate before settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative. This period can be extended if necessary.

If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.

What does a probate attorney do?

Probate attorneys specialize in the legal process that occurs regarding the transfer of a person’s property after their death. Whether the person had a will setting forth their wishes and desires regarding their estate or the property is to be distributed in accordance with state default rules, probate attorneys handle the administrative tasks, such as conducting an inventory of the assets, paying any debts and taxes, and facilitating the distribution of assets to the heirs. Also, if there are disputes between the heirs about who gets what, probate lawyers handle the litigation. Many times, families endure incredibly difficult fights over their inheritances. While sometimes the same probate lawyer will handle the administrative tasks and any disputes, some attorneys specialize in one or the other.

My Spouse Passed Away. Do All Assets Automatically go to me?

If the decedent died intestate (meaning the decedent did not have a will), the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):

If the decedent was survived by a spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents and more remote descendants.

If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

In addition, the decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30 percent of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds before final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney.

How Do I Get Access to the Bank Account of a Decedent?

If a “Pay On Death beneficiary” is not listed in the account, the only way to access the account in most cases is a summary or formal administration probate. In addition, if there is a safe deposit box, an additional step of conducting an inventory with the bank manager must be done by first petitioning the court.

What is homestead?

The homestead exemption in Florida may refer to three different types of homestead exemptions under Florida law:

1. exemption from forced sale before and at death per Art. X, Section 4(a)-(b) of the Florida Constitution[1];
2. restrictions on devise and alienation, Art. X, Section 4(c) of the Florida Constitution;
3. and exemption from taxation per Art. VII, Section 6 of the Florida Constitution.

Florida’s homestead exemption that provides an exemption from forced sale before and at death are among the most protective in the United States as it provides no limit to the value of certain real property that can be protected from creditors. The property tax exemption clause of Article VI renders property tax-free to the extent of certain dollar amounts in the value of the homestead.

The definition of a homestead is not necessarily co-extensive for Article X, Section 4(a)-(c) exemption purposes (exemption from creditors and restrictions on descent and distribution) and Article VI purposes (exemption from taxation). Both provisions apply automatically upon the establishment of a primary residence in Florida, but to reap the tax assessment benefits, the homestead exemption must be claimed by a filing with the local county property appraiser’s office. Homestead can be lost if the homeowner abandons use of the real property as a homestead.

A fourth benefit, while not as clearly an exemption as the above three, is also accorded to one’s homestead in Florida per Art. VII, Section 7 of the Florida Constitution. For tax purposes the year-to-year increase in assessed value of the homestead is limited to the lesser of 3% or the percentage change in the Consumer Price Index.

Florida law places restrictions on who can receive your Florida homestead when you die.

The answer depends on whether you were married at the time of your death and whether minor children survived you. If you are not survived by a spouse or any minor children, you can leave the homestead to whomever you please. You can disinherit one adult child in favor of another or disinherit your adult children entirely in favor of a sibling or a friend.

Married with a minor child. If you are survived by a minor child and you’re married, and if your homestead is titled in joint names with your spouse, you can leave your protected homestead to your spouse through rights of survivorship.

Single with a minor child. But what if you’re a single parent and the homestead is titled in your name solely? A law went into effect on Oct. 1, 2010, allowing a single parent of a minor child to establish a special type of irrevocable trust for the minor child’s benefit until an age selected by the parent.

This avoids the need to set up a guardianship for the minor, and it gives the parent control over when and how the child will inherit the homestead. But this special type of trust must be irrevocable and should only be established with the help of an estate planning attorney. Irrevocable means that after you form it, you can’t legally undo it.

Married with spouse as sole survivor. What happens if you are survived by a spouse? Then—at least up until Oct. 1, 2010—if you did not leave your homestead to your spouse outright and without any strings attached, she would automatically receive what is known as a “life estate” in the homestead. While your surviving spouse would have the right to live in the property for her remaining lifetime, she would also have to pay all the property taxes and the insurance necessary to maintain the residence.

Married with adult children. If you are survived by a spouse and you have adult children, they would receive the estate in equal shares after your spouse dies, if the life estate applies. If your spouse has elected to live in the property for the remainder of her life, she couldn’t force the children to sell the property, but your children couldn’t force her to sell it either.

Effective Oct. 1, 2010, the surviving spouse who is initially stuck with a life estate in the homestead can elect to divide the property so that she will receive one-half and the children of the deceased spouse will equally divide the other half. He or she must make this election within 6 months after the deceased spouse’s death.

Why does it cost more the probate a homestead property?

Separate pleadings and hearings are required in order to transfer a homestead property, which must be filed in conjunction with a summary or formal administration probate. Homestead proceedings are extremely complex, even for the “simplest” of cases, and hiring an attorney is well worth the time and effort wasted trying to understand this area of law.

Your ad states you charge $995, why is my quote more?

The Malhotra Law Firm offers a revolutionary probate pricing system which saves our clients THOUSANDS of dollars. Each case is different, and each case requires a different amount of work. Although there are MANY unknown variables when we take your case, we are still able to provide a flat fee which will be your TOTAL attorneys fees throughout the process, unless unforeseen circumstances arise. The quote we provide will take into account the amount of beneficiaries, amount/type of assets, and quality of estate planning documents, among other factors.