FLORIDA PROBATE LAW
1. PROBATE DEFINED
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.
2. WHAT ARE PROBATE VS. NON PROBATABLE ASSETS?
Generally, probate estate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. Some examples follow:
- a bank account in the sole name of a decedent is a probate asset, but a bank account, held jointly with rights of survivorship (JTWROS) with another, or held in-trust-for (ITF) another is not a probate asset;
- a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent's estate is a probate asset;
- real estate titled in the sole name of the decedent or as a tenant in common with another person, is a probate asset (unless it is homestead) but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
- property owned by husband and wife as tenants by the entirety is not a probate estate asset on the death of the first spouse to die, but goes automatically to the surviving spouse;
- property owned by a life tenant with remaindermen is not a probate estate asset on the death of the life tenant, but goes directly to the remaindermen upon the death of the life tenant.
3. WHY IS IT NECESSARY TO PROBATE AN ESTATE?
Probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent's creditors are properly paid. Probate of an estate also serves to transfer assets from the decedent's individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make important decisions by leaving a valid will.
4. WHAT IS A WILL?
A will is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida law. A will usually designates a personal representative to administer the estate and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee.
5. WHAT HAPPENS TO PROBATE ESTATE ASSETS IF THERE IS NO WILL?
Contrary to the belief of some, the decedent's assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:
- Surviving Spouse and No Lineal Descendants(e.g. children, grandchildren) . If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.
- Surviving spouse and lineal descendants.
1. 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.
2. 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.
6. WHAT IS A PERSONAL REPRESENTATIVE OF AN ESTATE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
The personal representative of the estate is the person, bank or trust company appointed by the court to be in charge of the administration of the estate.
The personal representative of the estate is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
- Identify, gather, value and safeguard probate assets.
- Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the estate.
- Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
- Conduct a diligent search to locate "known or reasonably ascertainable" creditors of the estate, and notify them of the time by which their claims must be filed.
- Object to improper claims and defend suits brought on such claims.
- Pay valid claims, pay taxes, file tax returns.
- Pay administrative expenses of the probate estate.
- Distribute assets to beneficiaries of the estate.
- Close probate administration.
7. WHO CAN BE A PERSONAL REPRESENTATIVE OF AN ESTATE?
- The personal representative of the estate 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 relatives, can serve as the estate's personal representative.
- 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 for an estate.
8. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
In almost all instances the personal representatives of estates must be represented by a Florida attorney. Many legal issues arise, even in the simplest estate administration.
The attorney for the estate 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 is not the attorney for the beneficiaries.
A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding on the personal representative.
9. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.
The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the estate until the claim has been satisfied or otherwise disposed of.
10. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
Florida policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a marital agreement to the contrary, a surviving spouse may have homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by an attorney.
11. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under Florida law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.
12. WHAT IF THERE IS A REVOCABLE TRUST?
If the decedent created a revocable trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the court where the decedent lived, giving information concerning the settlor and trustee.
In any event, competent legal representation is essential in probate matters. The Law Office of Lee A. Rosenthal, P.A., provides professional, personal service to clients in probate matters, from initial filing through the distribution of assets and discharge of the personal representative.
If you are looking for an Attorney or Lawyer in Palm Beach, Florida, contact me to discuss your estate planning, probate litigation, estate administration, Medicaid planning, elder law, wills and living trusts or business formation case today. My North Palm Beach law office, Lee A. Rosenthal, P.A., serves Florida residents in Palm Beach and Martin counties, which includes Palm Beach Gardens, Palm Beach, West Palm Beach, North Palm Beach, Royal Palm Beach, Jupiter, Boynton Beach, Greenacres, Lake Worth, Stuart, Tequesta and Wellington. Call me at 561.799.5290 for a free initial consultation
