Florida Probate FAQ
Unless you are a Florida probate lawyer, you probably don’t spend much energy thinking about issues like contested wills, trust contests or elderly financial exploitation.
Proper planning can help avoid many of the worst issues, but even that doesn’t necessarily insulate entirely from disputes.
Here, the probate litigation attorneys at The Ansara Law Firm want to offer some helpful insight for those who need to learn more about Florida probate laws. This Florida probate FAQ offers answers to some of the most common questions that arise.
These answers here are intended only to provide an overview, and shouldn’t be construed as legal advice specific to your case. If you have additional questions about the circumstances you are facing, contact our probate litigation lawyers to learn more about how we can help.
Q: What is probate?
A: Probate is a process supervised by the court that identifies and gathers a decedent’s assets, pays taxes, claims and expenses and distributes assets to beneficiaries. You can find more about Florida’s Probate Code in Florida Statutes 731 through 735. Probate law allows for formal administration (most common) and summary administration (typically for small estates less than $75,000) of a decedent’s property, as well as a non-administration process called the Disposition of Personal Property Without Assets. This last option is for small estates wherein decedent leaves only personal property exempt from creditors and nonexempt personal property not exceeding the cost of funeral expenses and reasonable/ necessary medical and hospital expenses of the previous two months.
Q: What are assets in probate?
A: Probate assets typically include property, money and other assets that are solely in decedent’s name at the time of death, or else are owned solely by decedent, and for which there is no automatic succession of ownership when they die. An example would be a bank account in the sole name of decedent. However, jointly-held bank accounts would go to the other joint owner, and would not end up in probate in Fort Lauderdale or elsewhere in Florida. Life insurance policies, annuities or individual retirement accounts payable to a named beneficiary wouldn’t wind up in probate court, though such a policy payable to estate of decedent would go to probate. A real estate in the sole name of decedent would be considered a probate asset, unless it is homesteaded or there are joint tenants who have survivorship rights (i.e., spouses or minor children). Similarly, property that is owned by spouses as tenants won’t be a probate assets on the death of one spouse, but instead would go the surviving spouse.
Q: Why is probate needed?
A: Probate is needed to help tie the loose ends on decedent’s affairs. Probate is also a process that helps to transfer assets from the sole name of decedent to the appropriate beneficiary. Florida’s probate laws cover all aspects of the process, but decedents are given the freedom to make some of those decisions with the creation of a valid will.
Q: What is a will?
A: A will is a document, signed by decedent in the presence of witnesses that meets the criteria set forth by Florida statute that typically:
- Designates a personal representative;
- Names beneficiaries who will receive certain probate assets;
- Establish a trust/ designate a trustee.
There are certain things a will cannot do, such as completely disinherit a spouse. However, the intent of the decedent as reflected in the will is often given great weight in these proceedings – unless there is a finding of undue influence, fraud or lack of mental capacity by the creator of the will at the time it was drafted and signed.
Q: What if there is no will?
A: If there is no will, it will depend largely on whether there is a surviving spouse. If there is a surviving spouse and no lineal descendants, surviving spouse will likely be awarded the entire estate. However, if there is a surviving spouse and one or more lineal descendants (this includes children who were adopted or born out-of-wedlock), surviving spouse will receive the first $60,000 plus one half the rest, and then lineal descendants get the other half. That assumes the descendants were all shared by decedent and surviving spouse. However, if one or more of the descendants in that scenario are not also descendants of the surviving spouse, the surviving spouse will receive one-half the probate assets and lineal descendants will share the remaining half. If there is no spouse, but lineal descendants, those descendants will share the estate. If there is neither a spouse nor descendants, probate property will go to decedents parents. If none, it will go to siblings and then descendants of those siblings. There are some exceptions when it comes to homestead property, personal exempt property and other provisions, but it’s important to discuss these issues with an experienced probate litigation lawyer in Fort Lauderdale.
Q. Who is the personal representative and what do they do?
A: A personal representative is an individual appointed by the court to be in charge of an estate. This individual is responsible to identify, gather, value and keep safe probate assets, publish a notice to creditors and a notice of administration, conduct a reasonably diligent search of creditors, object to any improper claims, pay valid claims, file tax returns, pay administrative expenses and distribute assets to beneficiaries. Personal representatives can be an individual, but they may also be a bank or trust company. In many cases, it’s a spouse, sibling, parent, child or close relative – so long as they are a Florida resident. Decedent can stipulate personal representative in a valid will, but if that did not exist, the spouse would have preference, followed by a person selected by a majority of interested heirs.
Q: What are the rights of surviving family members in probate estate?
A: It is public policy in Florida to protect the surviving spouse and minor children from complete disinheritance. That’s why unless there is some type of marital agreement that says otherwise, a surviving spouse will receive family allowance rights, exempt property rights, elective share rights and homestead rights. Certain children might also have homestead rights and others.
Q. Does the personal representative need an attorney?
A. It’s almost always wise to be represented by a probate lawyer if you are a personal representative. There are many complex legal issues that can arise, and strict compliance with Florida law is necessary to ensure duties are properly carried out. Beneficiaries may require a different attorney to represent their interests.
To ensure you know exactly what your duties and rights are and how to enforce them, contact an experienced probate litigation attorney.
Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (888) 267-2728 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.