Probate is one of those legal procedures that just about everyone undergoes at some point in their lives. The process can get surprisingly complex if estate finances are complicated, or if a large amount of assets must be distributed. At Lorenzo Law, we know how to handle your probate problems.
Firm founder Jose M. Lorenzo is well respected among both clients and peers — prestigious lawyer directory Avvo.com, for example, rates his legal services at a perfect 5/5 based on over 50 reviews. Let us put our resources to work for you! Following is a brief overview of how probate law works in Florida (minus the hidden complications, which are almost always relevant).
Assets That Don’t Go Through Probate
Not all assets need to go through probate to be distributed — title to certain kinds of property can pass automatically. Some examples follow:
Assets held in joint tenancy or tenancy by the entirety. When one tenant dies, the property automatically passes to the surviving tenant.
Assets held in a living trust.
Assets for which a named beneficiary exists — a life insurance policy, assets held by an IRA or a 401(k), securities held in a transfer-on-death account, funds in payable-on-death bank accounts, etc.
Because these types of ownership schemes are extremely useful, you would likely benefit from some state planning if you own significant assets. In particular, an unincorporated small business owner who wishes to pass on his business to his descendants needs to know how to keep company assets out of probate.
Simplified Probate Procedures
Simplified probate procedures apply if:
The estate includes no real estate, and all property is exempt from creditors’ claims except for funeral expenses and expenses for the last two months of the deceased’s last illness; or
The deceased has been dead for more than two years, or (in some cases) if estate assets don’t exceed $75,000 above the amount subject to creditor claims.
If either of these two circumstances apply, the probate process will be far less burdensome than full probate administration would be.
Formal Probate Administration
Most estates with significant assets are subject to full probate administration. The full formal probate process works like this if all goes smoothly:
The executor nominated in the deceased’s will, or an “interested party” (someone who stands to gain or lose from the outcome of probate proceedings) petitions the probate court sitting in the county where the deceased died to be appointed the personal representative of the estate.
The court appoints the personal representative (typically the person nominated in the will, if the deceased left a will).
The court notifies two groups of people of the upcoming probate proceedings (i) people who stand to inherit under the will and (ii) people who stand to inherit if the will is declared invalid.
The court issues the personal representative Letters of Administration, which give the personal representative the authority to represent the estate in dealings with third parties such as creditors and debtors.
The deceased’s last will and testament is filed with the probate court, if one exists.
The will is proven valid, typically through the use of witnesses and/or notarized statements, or it is declared invalid. Probate can proceed even if no will exists.
The personal representative inventories estate assets, collects its debts and pays its creditors.
The personal representative submits a final accounting of the estate to the court; this document summarizes the his actions and includes a plan for distributing estate assets.
Interested parties are notified of the asset distribution plan, and anyone who has an objection can file it with the probate court.
If there are no objections (or after they have been resolved), the personal representative distributes all estate assets that remain after estate creditors have been satisfied.
The personal representative submits evidence of his estate administration to the probate court and asks the court to close probate.
The probate court issues an order closing probate.
Intestate succession is a statutory distribution plan that applies when the deceased leaves no valid will. In that case, the Florida intestate succession statute functions as a “will” that distributes estate assets to children, parents, or other close relatives according to certain rules of priority. If the deceased dies with a spouse but no descendants, for example, the spouse inherits everything. Other outcomes are possible depending on who survives the deceased.
Probate litigation can be initiated by any interested party, and it can greatly add to the time and trouble of probate proceedings. Some of the most common grounds for probate litigation n Florida include:
An allegation that the will is fraudulent or that someone exercised undue influence over the deceased when the will was being created or amended;
An allegation that the deceased lacked “testamentary capacity” when the will was created or amended (he was mentally incompetent due to illness, for example).
Disputes filed by creditors of the estate.
Allegations of misconduct against the personal representative including fraud, self-dealing, mismanagement and failure to share information, among other possible allegations.
Our Practice Areas
Our firm handles cases in the following practice areas, among others:
Probate Administration and Litigation
Estate Planning and Probate
Probate and Guardianship
Frequently Asked Questions (FAQs)
Is a lawyer required for probate?
Probably. Under Florida probate law, an estate lawyer is required unless (i) the estate includes no real estate; and all property is exempt from creditors’ claims except for funeral expenses and expenses for the last two months of the deceased’s last illness; or if the personal representative is the sole beneficiary of the estate. In any case, retaining a lawyer is a good idea, since the process can get complex even for a small estate.
How Long Does Probate Take?
Expedited probate procedures might be completed in a month or two. Formal probate, however, takes anywhere from four months to a year; even more time might be required if a dispute erupts. As always, the length of time required depends to a great extent on the details of the case.
What’s the difference between an executor and a personal representative?
An “executor” and a “personal representative” are two different names for the same position. Although Florida typically uses the term “personal representative”, the two terms are essentially interchangeable.
Who can serve as a personal representative?
To serve as personal representative of a Florida probate estate you must be:
Over 18 years of age;
Either a Florida resident or a relative of the deceased;
Mentally and physically able to perform the duties of a personal representative; and
Never convicted of a felony.
When selecting a personal representative among qualified applicants, the court will apply the following priority:
The person nominated in the will.
The spouse of the deceased.
A candidate who is elected by a majority in interest of the heirs (heirs who collectively stand to inherit more than 50 percent of the estate).
Can a spouse be cut out of a will?
No, not unless the spouse signed a prenuptial agreement with the deceased that provides for this outcome. Otherwise, the surviving spouse is entitled to thirty percent of the “elective estate”, even if the will left a smaller amount or even if it purported to cut the spouse out of the estate entirely. The calculation of the “elective share” is too complex to explain here.
Is it ever too late to begin probate?
Theoretically, no — there have been cases where probate has been delayed until decades after the death of the deceased. These cases tend to be difficult to manage, however, because by this time even many of the heirs have died and their own probate proceedings must be taken into account.
Do I need to appear in court?
Almost certainly not, so don’t worry if you live out of state. Florida law does not require the heirs, the beneficiaries, the personal representative or even the lawyer to appear in court — it is all handled by mail, email, telephone and fax. Even if the estate is contested, your lawyer may be able to appear in court for you with no need for your personal attendance.
Will the estate have to pay estate tax?
Probably not. Florida does not currently impose an estate tax, and the IRS imposes estate tax only on estates with taxable values that exceed the estate tax exemption, which is currently set at more than $10,000,000. The estate might have to file federal and state estate tax returns, however, even if it owes no estate taxes.
Do beneficiaries have to pay an inheritance tax?
In most cases, they don’t. Exceptions do exist — if the inheritance came from an IRA, U.S. savings bonds or a Keogh Plan for example. Another exception applies to an inheritance of real property from another state, in which case the property might be subject to the inheritance tax imposed by that state. Consult with a lawyer for details on which other exceptions may apply.
Hire a Miami probate lawyer.
If you require the services of a probate attorney, then you need to contact us as soon as possible. Call us at (305) 999-5411, fill out our online contact form, email us at email@example.com visit our office at Coral Gables or Ft. Lauderdale. Our law firm serves clientsin Miami FL, Miami-Dade, Fort Lauderdale, Coral Gablesand elsewhere in South Florida, as well as throughout the state.
We provide legal services throughout Florida including those in the following localities: Miami-Dade County including Aventura, Miami, Coral Gables, Doral, Fontainebleau, Hialeah, Homestead, Kendall, Key Biscayne, Miami Beach, Miami Lakes, North Miami, Tamiami, Westchester, and North Miami Beach; Broward County including Fort Lauderdale, Hollywood, Cooper City, Coral Springs, Hallandale Beach, Oakland Park, Pembroke Pines, Plantation, and Weston; and Palm Beach County including West Palm Beach.
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