Probate Lawyers Fort Lauderdale Florida
Probate is the process by which someone’s assets are distributed to intended beneficiaries after death. This is an oversimplification, of course — some assets, for example, do not even go through probate. Nevertheless, you are likely to be involved in a probate proceeding at some point in your life, even if only as a beneficiary.
How Probate Works in Fort Lauderdale
In a probate proceedings, the deceased’s last will and testament is deposited with the probate court with jurisdiction over the case. The court then appoints a personal representative(usually the person named in the last will and testament; otherwise the court will usually appoint a close relative). The personal representative closes out the estate by paying its debts, collecting whatever debts are owed to it, and distributing assets according to the will.
The probate court supervises the entire process. If a probate dispute erupts (if someone challenges the validity of the will, for example), the court will hear the dispute and make a decision. Once all disputes have been resolved and all estate assets have been properly distributed, the court will issue an order closing the estate.
Exceptions to Probate
Following are the two major exceptions to the requirement for probate proceedings:
- Non-Probate Assets: Certain types of assets, such as assets in a living trust, life insurance proceeds, property held in joint tenancy, and IRA accounts are not subject to probate — they pass under their own terms. The beneficiary of a life insurance policy, for example, is likely to receive the value of the policy within a few weeks, without the involvement of the probate court.
- Summary Administration: Summary administration is a simplified probate proceeding for small estates, or for situations in which more than two years have passed since the deceased’s date of death. If the estate is eligible for summary administration it is an option, not a requirement. It is quicker than probate and does not even require the appointment of a personal representative to administer the probate estate.
Some of Our Practice Areas
Jose Lorenzo is a probate attorney and a member of the Florida Bar with years of experience practicing law in the following areas:
- Asset protection
- Probate litigation
- Trusts & estates
- Estate planning
- Estate administration
- Personal injury
- Probate litigation
- Probate trust administration
- Real estate probate planning
- Trustee/personal representative breach of fiduciary duty
The foregoing is only a partial list of the areas of law in which Lorenzo Law serves clients.
Frequently Asked Questions (FAQs)
Which parties are likely to be involved in the probate process?
The following parties are typically involved in the probate process:
- The Clerk of the Circuit Court, who receives the initial paperwork;
- The Circuit Court Judge, who presides over the case;
- The personal representative of the estate, who administers the estate under the direction of the probate court;
- The attorney for the personal representative, who represents the estate, not the personal representative in his personal capacity;
- Claimants, such as estate creditors, or someone who is trying to invalidate the will;
- The IRS, for obvious reasons;
- The Florida Department of Revenue, again for obvious reasons;
- The surviving spouse and children, since they typically enjoy statutory inheritance rights regardless of the contents of the will; and
- Other estate beneficiaries.
Other parties may be involved as well, depending on the details of your particular case.
How is the probate process commenced?
Florida probate is commenced in the following manner:
- File the probate paperwork with the Florida circuit court in the county where the deceased lived. These papers include the will (if there is one) and a petition for the administration of probate. The local circuit court may have additional paperwork requirements. Anyone with a stake in the outcome of the proceedings can file for probate, including someone not named in the will but who would inherit if the will were declared invalid.
- Pay the filing fee to the court clerk
- The clerk will assign a file number to the case and open a file.
- The circuit court judge assigned to the case will appoint the personal representative and issue Letters of Administration that grant the personal representative proof of his authority.
- The court may hold hearings and issue orders, depending on the details of the case.
What are the duties of the personal representative of the estate?
The personal representative (formerly known as the executor) is an individual, bank or trust company appointed by the probate court to administer the estate. Normally, the personal representative is nominated in the deceased’s last will and testament.
The personal representative is expected to:
- Gather estate assets, get an appraisal of their value and safeguard them.
- Publish a “notice to creditors” in the newspaper, making probate proceedings public and inviting estate creditors to file any claims they might have against the estate. A notice might have to be delivered to specific persons, inviting them to file any claims or objections they might have.
- Conduct an investigation to identify estate creditors and notify them of the deadline for filing their claims against the estate.
- Defend the estate against inappropriate creditor claims, by going to court if necessary.
- Diligently investigate and collect any debts owed to the estate.
- Pay any valid creditor claims against the estate out of estate assets.
- File the tax return for the estate or for the deceased (perhaps, depending on the circumstances).
- Pay all due taxes out of estate assets.
- Employ professionals, such as accountants and lawyers, to assist in estate administration, and pay them out of estate assets.
- Pay all estate administrative expenses out of estate assets.
- Distribute any amounts that are automatically due as a matter of law to the surviving spouse or relatives.
- Distribute assets to estate beneficiaries as directed by the probate court.
- Close probate administration by seeking an order from the probate court.
The personal representative may be entitled to significant compensation. He may also be sued or in some cases even arrested for misconduct.
How are estate creditors involved in the proceedings?
Estate creditors may be involved in the probate process before it even begins.
- A creditor can file a caveat with the probate court as soon as it learns of the death of the deceased, telling the court to notify it whenever probate proceedings are commenced.
- Within three months (typically) of the publication of the notice to creditors (see above) in the newspaper, a claimant, whether or not a creditor, can file a “statement of claim” with the Clerk of the Circuit Court notifying the estate of his claim against it.
- The personal representative’s duties may go beyond simply publishing the notice to creditors. He is expected to make diligent efforts to ensure that all estate creditors receive actual notice of the probate proceedings.
- Anyone with a stake in the probate proceedings, including the personal representative, can file an objection to the statement of claim. Even a potential estate beneficiary can file an objection, because if the claim succeeds, estate assets will be reduced, leaving less to be distributed to him.
- If anyone files an objection to the statement of claim, the claimant can file a separate lawsuit to enforce the claim. The probate court must respect the outcome of the lawsuit, and the personal representative must distribute estate assets to a creditor who wins a lawsuit against the estate. Obviously, a pending lawsuit will delay the closing of probate.
What are the grounds for invalidating a will in Florida?
A will can be invalidated for a number of reasons in Florida. Some of the most common reasons include:
- Someone exercised undue influence over the testator (the testator is the person who wrote the will and whose assets are subject to probate);
- The testator lacked mental capacity at the time the will was written (because of dementia, for example);
- The appropriate legal formalities for writing a valid will were not complied with (lack of two witnesses, for example);
- Fraud occurred (the testator did not realize that what he or she was signing was actually a will, for example); and
- The will was the product of an insane delusion on the part of the testator (this may apply if, for example, someone leaves all of their assets to their cat, or to extraterrestrials).
Is a lawyer required during probate proceedings?
A lawyer is usually required to represent the personal representative. Situations in which a lawyer is not required include:
- The personal representative of the estate is the only beneficiary (the deceased’s spouse, for example); or
- The estate has no real estate and all of its property is exempt from creditors’ claims, except for funeral expenses and certain expenses that arose during the last two months of the deceased’s life. Remember, the estate still includes no real estate even if the deceased owned real estate but put it into a living trust, for example, of it the real estate is otherwise not a part of the probate estate.
Will I have to go to court?
Probably not. You will almost certainly not be required to come to court as long as no dispute erupts. Even if a dispute does erupt, as long as you have a lawyer, you can send your lawyer to court for you. In some disputes you might be required to testify, but this is not the typical case.
What happens if there is no valid will?
In probate, there may be no valid will for one of two reasons: (i) the deceased did not leave a will; or (ii) the will is invalidated by the probate court. If the will is invalidated, the deceased’s probate estate will pass to beneficiaries according to Florida intestate succession law. Florida intestate succession law rank-orders beneficiaries according to their relationship with the deceased — the spouse is first priority, for example — and then distributes assets accordingly.
How are assets distributed under Florida intestate succession law?
Although the rules are complex, following is a brief sample:
- If you leave a spouse but no lineal descendants, or all lineal descendants of you or your spouse are descendants of both you and your spouse, all probate property goes to your spouse.
- If you have children but no spouse, your children get everything split equally among them.
- If you have surviving lineal descendants who are also lineal descendants of your surviving spouse, but your surviving spouse also has lineal descendants who are not your descendants (your stepchildren, for example), your spouse gets half and your lineal descendants share the other half equally.
What are Letters of Administration?
Letters of Administration are written orders from a probate court that authorize the personal representative to administer the estate. They may authorize, for example, the personal representative to draw on the assets contained in the deceased’s bank account to pay estate debts. In short, they grant the personal representative the formal authority to administer the estate.
Can you completely disinherit your family?
Not in most cases. It might be possible if, for example, your children have all reached adulthood and you signed a prenuptial agreement with your surviving spouse that specifically allowed you to disinherit him or her. Absent special circumstances, however, spouses and children enjoy certain inheritance rights regardless of the terms of your will, or even if you die without a will. These rights may include:
- Homestead rights;
- Elective share rights;
- Family allowance rights;
- Exempt property rights; and/or
- Pretermitted child rights.
Contact Lorenzo Law Today
It is dangerous to select a name at random out of an online lawyer directory– a lawyer whose primary experience lies in business law, for example, is not likely to be your best choice of probate attorney. Jose Lorenzo is an estate planning and probate lawyer with years of experience handling estate and probate problems — and that means helping to avoid problems in advance as well as resolving them when they do occur. Our law firm offers its extensive legal servicesto clients throughout Fort Lauderdale, FL including Coral Springs, Victoria Park, Rio Vista and Bay Colony, as well as elsewhere in Broward Countyand South Florida. Call us at (305) 999-5411, fill out our online contact form, email us at [email protected] or visit our office at Coral Gables or Ft. Lauderdale.