Probate & Estate Administration

Do I need a lawyer for Florida probate?

Yes, in almost all cases. Except for “disposition without administration&edquo; (very small estates) and those estates in which the executor (personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney. Even when an attorney is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer.

Does the lawyer need to be in the same city or county as the decedent?

Usually not. Most probate administrations are uncontested and undisputed, in which case neither the attorney nor the personal representative actually goes to court. All the paperwork is handled by mail. Therefore most estates can be handled by any Florida-licensed attorney, regardless of where he or she may actually have his or her office. If there is a court hearing, sometimes the attorney can appear by phone. If a personal appearance in court is required, the attorney can retain a local attorney for that limited purpose, with the client's permission.

How much do Florida lawyers charge?

Florida law permits probate lawyers to charge fees based upon a percentage of the estate, but in many cases THAT RESULTS IN TOO HIGH A FEE. Many lawyers in Florida charge either a flat fee or “by the hour.” Estates vary from very simple to extremely complicated, based on the type of assets owned, the number of beneficiaries, and special conditions in the Will. If the decedent owned real property in ten different states, you can be sure the probate costs will be a lot higher than if he or she just owned “liquid” funds in financial institutions. It is not the amount of the estate but the type of assets and complexity of the Will that should determine the legal fees in probate cases.

My mother just died, leaving my father a widower. The bank accounts are in joint names, as is their house, and her insurance and IRA both list dad as the beneficiary. Does anything need to go through probate?

No, jointly held assets between husband and wife almost always are “survivorship&rldquo; assets, with the surviving spouse automatically owning those assets upon the decedent's death. Insurance and other assets which have a “pay on death” designation pass “outside probate,” at least when going to the spouse, and the beneficiaries do not need a court order. They usually have to fill out a form, submit a certified death certificate or take other steps, but probate should not be needed.

How long does Florida probate take to finish?

Unless there are complications or disputes, most nontaxable estates take between four and six months for formal administration, but just a matter of days for summary or family administration. Taxable estates cannot close until the IRS signs off on the Estate Tax Return 706, which has to be filed within nine months after the date of death and often takes that long to prepare. Taxable estates are doing well to close in two years. However, the work is primarily done in the first nine months of a taxable estate, and the rest of the time is spent mainly waiting for IRS review and approval to close the estate.

Do all estates in Florida have to go through “full-blown&rldquo; probate?

No, very small estates without real property may qualify for “disposition without administration,” and some estates may qualify for summary administration, which is a faster and cheaper form of probate administration. Because Florida's homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property (principal residence), but little else, can qualify for summary administration. Also, if the decedent has been dead more than two years, the estate can be handled in summary administration.

Does Florida have a death tax or estate tax?

Technically, yes, but practically, no. Like many states, Florida imposes an estate tax only on those estates which are taxable under federal estate tax law and only to the extent that state estate taxes reduce federal taxes. In other words, if Florida did not impose this tax, the feds would get that money, so the state estate tax ends up costing the estate nothing extra. So if the estate is paying federal estate tax, it will pay a smaller tax to Florida as well; otherwise, no tax.

What if the decedent left no will?

First, be sure there is no will. Just because you do not quickly find one does not mean there is not one in a safety deposit box or hidden away with other papers. If the decedent stated before death that he or she had no will, then you can be fairly sure there was none. If there is no will, Florida has an “intestate succession” law which states that certain persons receive the estate. If there is a surviving spouse but no “lineal descendants” (children, grandchildren, or great-grandchildren, natural or adoptive), then the spouse gets the entire estate. If there are lineal descendants, the spouse gets at least half the estate, but the descendants get some part also. If there is no surviving spouse and no lineal descendants, then the estate goes to any surviving parents of the decedent. If no parents, then to other relatives of the decedent, starting with brothers and sisters. Many times this intestate succession is not exactly what the decedent would have wanted, which is one reason a will is a good idea.

Do I need to come back to Florida to probate my parent's estate?

No, not usually for probate. Unless a dispute requires a hearing, neither the personal representative nor the estate attorney will actually go to court in Florida. There is no “reading of the will” like you see in old movies. Everything is done by mail, email, phone and fax.

Why can't I just record the will to change the title to my parent's property in Florida?

Title insurance underwrites in Florida generally do not recognize a recorded will as sufficient to convey title, for at least two reasons. First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the decedent. Second, there are situations in which the property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.

What if there are not enough assets in the estate to pay all of the decedent's debts?

Obviously there will not be any inheritance to the heirs or beneficiaries, who receive assets only if all debts are paid. Florida law has a statutory priority of claims, in which some claims (such as funeral expenses and final medical bills) come ahead of others. Most important in this day of “living trusts,” Florida law allows the creditors to reach assets of the decedent which were placed in certain types of trusts, and requires those trustees to use trust assets if necessary for estate expenses and claims.

My dad put my name on his checking account so that I could sign checks for him if he was disabled. Now that he is dead, the bank says that I can withdraw the money. Is that right?

This is one of the most confusing situations of an estate in Florida. From the bank's point of view, if your name was on the account you could have taken out money - even all the money - before your dad died. The bank is protected by Florida law regardless of who put the money into the account. However, the courts in Florida have held that such accounts could be a “convenience account,” which is really property of your dad, and now belongs to his estate. Unless you are the sole beneficiary, this has the potential to create some conflict between yourself and the estate, and legal counsel is needed.

My mother left everything to my sister and nothing to me. Can she do that?

If you are over the age of 18, yes, she can, provided that no grounds exist to set aside the will. Adult children can be disinherited in a will in Florida. Minor children may have certain rights to homestead property.

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