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We have put together a few of the most frequently asked questions regarding the subject of Probate and Guardianship. Since this is one of the most misunderstood areas of the law of personal and family business, we hope we have been able to provide you with a little insight into the process and what you can expect.

We look forward to the opportunity to assist you with your Probate, Guardianship and Real Estate related needs. Please feel free to Contact Us at any time, we are available 24/7 to answer your questions.

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 and that is signed in the presence of 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 - the 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.

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 statutes 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) 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 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 unascertainable 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 independent 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 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 $1,500,000 as of 2004 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 non-administration proceeding called "Disposition of Personal Property Without Administration."

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 in 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

What are the Qualifications to Serve as Personal Representative

Any individual who is at least 18 years old who is a resident of Florida at the time of the decedent's death, is qualified to act as the personal representative. A person who is not domiciled/resident in the state of Florida cannot qualify as a personal representative of a Florida estate unless he/she meets one of the criteria set forth in §733.304, Fla. Stat. Trust companies incorporated under Florida law are eligible to serve as personal representative. Other institutions such as state banking corporations, savings associations, national banking associations, and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida are qualified to serve as personal representative.

What Is a Personal Representative, And What Does The Personal Representative Do

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, Miami Daily Business Review and Palm Beach Daily Business review frequently serve this publication requirement in South Florida) A personal representative shall conduct a reasonable search to locate known or "reasonably ascertainable" creditors (this is a U.S. Supreme Court mandated requirement) 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 than 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 $1,500,000 or more as of 2004 or 2005 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.

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.