In most Florida probate cases, a lawyer is required to complete the process in a timely and legally sufficient manner. Cases involving very small estates, also known as “Disposition Without Administration” for very small estates (Florida Statute Section 735.301), may proceed without an attorney. Even where an attorney is not necessary, it is critical to note that the probate process has many technical rules. Failure to follow them correctly can lead to devastating results, including possible sanctions by the court and lost time and resources.
Generally, if you are unrepresented, however, Florida judges will give you a break and sometimes help guide you along. It can be very frustrating for someone to probate an estate without a lawyer. Also, without a legal background in the area of probate and elder law, there are many pitfalls which can result. Some of them can lead to beneficiaries not receiving their inheritance, free from creditors’ claims. Quite often, out-of-state beneficiaries contact Florida attorneys not realizing that their loved one did not live in the same area as the attorney. The probate attorney usually does not have to be in the same county as the decedent’s residence. As long as the attorney is licensed in the state of Florida, he or she can handle cases in any county throughout Florida, and many probate proceedings can all be handled via mail and electronic submissions. Yet, where there may be litigation involved or will contest cases that may require the attorney to be present for court hearings. Seeking the guidance of a qualified attorney for a probate matter is highly recommended for all types of cases. Call our Tampa and Clearwater offices today at 813-279-6180 to further discuss your case.
Loss Of Family And Friends Through Death
We all experience death of family members or friends. Besides the emotional aspects of dealing with such loss, there is often a need to open an estate through the court system. This process is referred to as either probate, estate administration or trust administration. In some situations a legal proceeding may not be required, while in other circumstances a long, detailed process will be needed.
Determining which type of proceeding is needed, if any, should be done by consulting with a qualified attorney. There are many different legal aspects of handling an estate and without proper representation, difficulties may occur. In Florida, for example, the original will of the decedent must be filed with the court within 10 days of the death. Failure to file the will in a timely manner can result in drastic measures.
Florida Probate Law
Probate is a court process to locate and gather a deceased loved one’s assets. It involves paying expenses, claims and sometimes taxes and distribution of the assets to beneficiaries. There are two main forms of administration in Florida, formal administration and summary administration. Generally, estates that are valued above $75,000 fall into the formal administration category, those estates valued less may qualify for summary administration. Each process is unique, though the formal administration is a much more involved process.
Probate With Or Without A Will
If there is a will, the court will do its best to uphold the intent of the decedent with respect to handling the decedent’s estate. This is considered a testate estate. The court can review other states’ wills and determine whether they conform with Florida laws. If no will is located, then Florida intestacy laws apply, and the estate beneficiaries will be determined in accordance with the closest lineage to the decedent. At times, a genealogist must be retained to make such decisions
To qualify, you must be at least 18, a Florida resident or a close relative as directed by Florida statutes. You must not have any felony convictions and must have legal competence to act. After appointment has been made, there are various duties required, such as identifying assets, safeguarding assets, notifying creditors, locating beneficiaries, reviewing claims for legitimacy, hiring proper professionals to assist with administration, filing tax returns as needed, determining elective shares, continuing or discontinuing business, sale of real estate, etc. There are a multitude of assignments required by the personal representative to properly represent the estate. A personal representative may receive a fee for the services provided of approximately 3 percent.
Retaining An Attorney
In most situations, Florida courts require an attorney to represent the estate and personal representative. This attorney informs the personal representative on the procedure and obligations under the laws. The attorney for the estate is not the beneficiaries’ attorney. Sometimes they may retain separate counsel.
In Florida, if the decedent owned real estate that is considered their “homestead,” certain unique rules are applied to determine whether creditor protection is available. This special exemption was established in an effort to protect families from being displaced when someone dies. This is a very specialized area of law that should be analyzed by an attorney.
Probate Process Time Frame
For nontaxable estate, the closing of the probate administration is due within 12 months of the letters of administration issuance. This deadline can be extended with court approval. For estates not involving tax returns or litigation, they may be completed in a shorter time frame.
Out Of State Issues
Since the United States has so many great places to live, we find ourselves moving from place to place over the years. When a person passes away in one state and leaves assets such as bank accounts or real estate in another state, there is a special procedure required called ancillary administration. We have handled many similar situations, often not requiring the beneficiaries to travel to Florida. This can save unnecessary lost time from work and other obligations for our clients.
Overseas Probate Issues
Sometimes those living abroad pass away leaving assets in the United States. This firm helps clients to recapture the remaining funds, real estate or personal items left when someone dies abroad and distribute them to the beneficiaries. If such assets are not claimed within a certain time frame, they often will become the property of the government without further action. By hiring an attorney as soon as it is learned that there are assets in the United States, those assets can be saved from becoming government property and distributed to loved ones of the deceased person. We have successfully handled many cases in this situation without requiring parties to travel to the United States.
This is the process of administering and transferring assets according to the directives set forth in a trust agreement. Often there are extremely complex considerations required that may not have been anticipated by the trustee or the beneficiaries. A trust seeks to avoid probate administration, however there is often residual work that needs to be done, even outside of the probate process. Trusts can be utilized to manage property during a person’s lifetime, yet may involve ongoing duties after a person dies. It is recommended that a probate attorney be consulted to review the terms of the trust at various intervals when a trust is involved.
Probate And Trust Litigation
Unfortunately, families either become closer or become divided when someone passes away. When division between family and beneficiaries occurs, it often results in litigation in the court system. This firm has experience assisting families to sort out the mundane details of an estate, who are the beneficiaries and what share they receive. Even when families become estranged and are at odds with each other, we are here to help move the case along toward the best possible resolution.
No Contest Clauses In Wills
In Florida, no contest clauses are not upheld by the court. In other words, it the testator includes a provision in the will that a beneficiary loses his or her share of the property provided in the Will if they contest the will, this provision is invalid. Therefore such clause is unenforceable and will simply be ignored.
Divorce And Probate
Often someone will forget to take out a spouse following a divorce when their estate planning documents were created before the divorce occurs. In most situations, a provision to benefit a spouse will not be recognized. However, this is not always true when a person does not remove an ex-spouse’s name from a life insurance policy, annuity or another type of payable on death or beneficiary designation contained on a financial account. Contact our Tampa or Clearwater office today to speak to an attorney about your probate questions.