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Will & Trust Frequently Asked Questions

WHAT IS PROBATE?

Probate is the process that takes place when a deceased person (decedent) has assets that should be distributed to certain people (beneficiaries). The probate process may include paying funeral expenses, handling debts, and ensuring the proper distribution of any remaining assets. Essentially, probate is a way of settling things after someone’s death in an organized and legal fashion.

Each resident of Florida is subject to Florida probate law upon their death. The full language of Florida’s probate law is spelled out in chapters 731 through 735 of the Florida Statutes and Part I and Part II of Florida’s probate rules.

WHAT TYPES OF PROBATE DOES FLORIDA HAVE?

In Florida, there are several types of probate administration: formal, summary, and non-court-supervised. By far, the most common type is formal administration and this is the type most people are referring to when they use the term probate. Formal administration is supervised by a United States Florida court.

Summary administration and non-court-supervised administration apply in more limited circumstances, often involving exempt and lower-income decedents. Check with a wills and trusts lawyer if you are confused about which type applies to your situation.

WHAT ARE PROBATE ASSETS?

Probate assets are assets that were owned by the person who died and perhaps one or more co-owners. If the person left no instructions about exactly how to handle ownership of the assets after their death, the probate process addresses it by following a process set forth by Florida law. Some of the most common types of probate assets are bank accounts, investment accounts, retirement accounts, life insurance policies, and real estate.

WHY DOES PROBATE OCCUR?

Probate takes place when it is necessary to pass ownership of assets either when there is no will or when the will is not accepted as valid by the court. Probate allows a deceased person’s financial affairs to be concluded in a final way and provides a legal route for creditors to be paid if there are outstanding debts.

WHAT IS AN EXAMPLE OF A PROBATE SITUATION?

A common example of a probate situation involves real estate that was titled solely in the name of a deceased person who has no spouse to automatically gain control of it. During the probate process, the title of the property will be transferred. Who receives the asset and how the transfer occurs are details that are dependent upon the specific circumstances of the situation.

Another example could be when a bank account, retirement account, or investment account is jointly owned by the decedent and someone else who is not their spouse. A probate court may need to be involved with deciding whether the asset will be handled through the probate process or not. When there is a surviving spouse, the spouse usually automatically gains control of the decedent’s share of the asset.

WHAT IS A WILL?

A will is a legal document that meets Florida’s requirements and has the signature of the deceased person and witnesses. It names anyone who should receive assets and may name a personal representative, which is another name for an executor, who will facilitate the process. Please note that a will must be a written document and cannot be given in verbal instructions or secondhand testimony. Without a valid will, assets will be distributed by Florida law instead of how the deceased person may have preferred.

WHAT HAPPENS NEXT WHEN THERE IS NO WILL?

When there is no will to leave instructions about assets, the personal representative, and other matters, the person is considered “intestate.” Intestate is the term for someone who is deceased but has left no will and their estate will be subject to the probate process. Although what happens next is governed by Florida law, rarely are an intestate person’s assets turned over to the state. The probate process initiates and the state will attempt to provide the assets to an heir after creditors make their claims.

HOW DO HEIRS INHERIT?

When there is a will, heirs will inherit according to the instructions set forth within it except when prohibited by law. In the absence of a will, the state of Florida will distribute assets to heirs as follows unless a judge rules otherwise:

  • The spouse receives all assets if there are no living descendants.
  • When there is a spouse, and the deceased person had one or more children with them but there are no other living descendants, the spouse receives all assets.
  • If there is a surviving spouse as well as living descendants, the estate will be split in half with the spouse receiving half and the rest of the descendants sharing the remaining half.
  • When the deceased person was unmarried but has living descendants, they receive the estate and it is divided according to Florida law.
  • When the deceased person was unmarried and has no living descendants, the estate passes to their parents if living and their siblings if not.
  • In the absence of any of the scenarios described above, heirs will be located by the state of Florida and the estate will be divided according to law.

WHAT IF THERE IS NO HEIR?

In rare cases, the state of Florida searches for an heir and is unable to find one. The state will take the decedent’s assets only in a case like this, where the decedent has no discoverable living heirs.

WHO IS INVOLVED IN THE PROBATE PROCESS?

The probate process can involve many people, depending on the circumstances. These may include:

  • The personal representative (executor) named by the deceased person
  • The personal representative’s lawyer
  • The circuit court clerk and judge
  • Creditors who are making claims on the estate
  • Government representatives, like those from the IRS

WHERE AND WHEN ARE PROBATE PAPERS FILED?

Within 10 days of the death, the custodian of a will must provide an original copy of it to the clerk of the proper court. The proper court is the court in the deceased person’s county. The clerk will maintain a record of what happens going forward.

WHO SUPERVISES FLORIDA PROBATE ADMINISTRATION?

A circuit court judge will supervise the probate process and rule on such matters as the validity of the will, whether heirs are valid, and how the estate will be divided. If questions or conflicts arise, the judge will hold a hearing and make an order about how the process should move forward.

WHAT IS A PERSONAL REPRESENTATIVE?

In Florida, a personal representative is who will help ensure that a deceased person’s wishes will be followed as their estate is divided. In other states, this person is sometimes known as an executor or administrator. A personal representative doesn’t have to be an individual person and may also be a bank or trust company.

An individual must be a Florida resident or a spouse, sibling, parent, or child of the deceased person in order to be their personal representative. They also must be 18 and mentally and physically able to handle the role.

WHAT DOES A PERSONAL REPRESENTATIVE DO?

A personal representative is tasked with accomplishing many things or assigning them to another professional and paying them for the service. Generally speaking, a personal representative is responsible for all of the following activities.

  • Locate and protect the probate assets
  • Publish any required public notices
  • Conduct searches to locate creditors and heirs
  • Object to or defend claims as necessary
  • Pay claims, expenses, and taxes from the estate
  • Employ any professionals needed to handle the estate
  • Distribute assets and monetary amounts to beneficiaries
  • Close the probate estate

The personal representative is entitled to reasonable compensation for their role either as defined in the will or as assigned by the state of Florida.

DOES THE COURT APPOINT A PERSONAL REPRESENTATIVE?

When there is no specific personal representative named in the will, a judge will decide who will be appointed. The surviving spouse has the first right, followed by a person or entity chosen by the majority of heirs. If there is a disagreement, a hearing will be held and a judge will decide.

DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

The personal representative should choose a qualified wills and trusts attorney to assist with this process. In such a complex situation, it’s easy for legal issues to arise and an attorney will know how to follow the law appropriately.

DOES A CERTAIN ATTORNEY HAVE TO BE USED?

Although the decedent may instruct the personal representative to use the attorney they used themselves during their lifetime or another named attorney, this request is not binding upon the personal representative and they are free to make their own choice of attorney. Their attorney should work in the best interest of the deceased person/personal representative, rather than the beneficiaries who may have motives of their own. The beneficiaries are also free to choose their own attorneys.

WHAT IS THE ROLE OF THE CREDITORS?

The probate process is intended to pay back debts to creditors in an organized way. The personal representative will notify creditors of the probate period and work with them to acknowledge claims and pay them. Generally, this must happen within a three-month period unless the claim is declared invalid. Claims from creditors are paid before the beneficiaries receive anything from the estate.

HOW ARE TAXES HANDLED AND IS THE IRS INVOLVED?

The deceased person is expected to file their taxes with the IRS like anyone else and this is handled by the personal representative. This may include Forms 1040, 1041, 709, 706, and others. For more information about the tax responsibilities involved, please contact a qualified attorney and/or financial advisor. Please note that if the taxes are not paid properly or on time, the personal representative may be held responsible by the IRS.

IS THE SURVIVING FAMILY GUARANTEED TO RECEIVE ASSETS?

The surviving spouse and children may receive assets from the estate as long as it is not depleted by other claims, like debts. Although any Florida resident has the right to exclude someone from their will, Florida law protects spouses and certain children from complete disinheritance. Premarital and post-marital agreements can also be a factor, as can the dates of the will or wills involved. Even an accidentally omitted family member might be able to claim a portion of the estate. Due to the wide variety of circumstances that can be involved, it’s best to contact an attorney about specific questions involving whether you will receive assets from an estate.

HOW LONG DOES PROBATE TAKE?

Generally speaking, here are some of the time periods involved:

  • There is a 3-month creditor claim period
  • A tax return is initially due 9 months after the death but may be extended 6 months
  • Tax issues usually must be resolved within 12 months, but the period is sometimes extended

The timeframe of probate varies depending on the situation. Here are some of the factors that sometimes create delays and extensions:

  • Whether there are any disputes
  • Whether property needs to be sold
  • How long it takes to locate claimants
  • How easily documentation can be acquired and dealt with
  • Whether there are any tax issues

At a minimum, most probate cases take 5 months. They sometimes last 12 months or more if there is a long legal battle that creates additional delays. Although it is usually in everyone’s best interest to settle the estate within the shortest timeframe possible, probate sometimes stretches for a long period of time to ensure everything happens in the proper manner.

HOW IS A PERSONAL REPRESENTATIVE PAID?

A personal representative is paid out of the estate as set forth in the will. If there is no mention of their payment in the will, they will be paid as set forth by Florida law because they are entitled to reasonable compensation. If the beneficiaries object, a judge will need to rule on the matter but it is exceptionally rare for a personal representative to be denied reasonable compensation.

WHAT IS A REVOCABLE TRUST?

A living trust or revocable trust is established during the person’s lifetime and involves a trustee who pays estate expenses and so forth from the trust assets. Upon the person’s death, the trustee must file a notice with the court along with the details of the trust. This makes any creditors aware that they may have to make a claim against the trust to recover the amounts they are owed. In this situation, the trustee has the same responsibilities as a personal representative.

Call 877-941-4878 to receive legal advice and discuss your needs with an experienced estate planning attorney.

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