FAQ

Probate is a court-supervised process for identifying and gathering the decedent’s assets; paying taxes, claims and expenses; and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. Florida law establishes three types of probate administration: Formal Administration Summary Administration and Family Administration. However, as of January 1, 2002, Family Administration will no longer be available. Any Family Administration filed before January 1, 2002 may be completed as a Family Administration. Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example: a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset; a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset; real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset; property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse. This list is not exclusive but is intended to be illustrative.

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.

A will is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida law. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the automatic provisions set forth under Florida law. In the absence of a valid will, or if the will fails in either respect, Florida law designates the beneficiaries and designates the way to select the personal representative.

Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all. Surviving spouse and lineal descendants. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $20,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half. Beginning January 1, 2002, the $20,000 amount referred to above changes to $60,000. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half. No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child. No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these. Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent’s name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

While there may be others, the following is a list of persons or entities often involved in the probate process: Clerk of the Circuit Court Circuit Court Judge Personal Representative Attorney for the Personal Representative Claimants Internal Revenue Service (IRS) Florida Department of Revenue Surviving Spouse and Children Other Beneficiaries Trustee of Revocable Trust

Probate papers are filed with the Clerk of the Circuit Court, usually for the county where the decedent lived. A filing fee must be paid to the clerk to commence the probate administration. The clerk assigns a file number and maintains a docket sheet which lists all papers filed with the clerk for that probate administration.

A Circuit Court Judge presides over probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also referred to simply as “letters.” This document shows to the world the authority of the personal representative to act. The Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called “orders.”

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term “personal representative” has replaced such terms as “executor, executrix, administrator and administratrix.” The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to: Identify, gather, value and safeguard probate assets. Publish a “notice of administration” in a local newspaper, giving notice of the administration of the estate and of requirements to file claims and other papers relating to the estate. Beginning January 1, 2002, this notice will be called a “notice to creditors.” Beginning January 1, 2002, serve a “notice of administration” on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate. Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed. Object to improper claims and defend suits brought on such claims. Pay valid claims. File tax returns. Pay taxes. Employ necessary professionals to assist. Pay administrative expenses. Distribute statutory amounts or assets to the surviving spouse or family. Distribute assets to beneficiaries. Close probate administration.

The personal representative could be an individual, bank, or trust company, subject to certain restrictions. An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative. A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

If the decedent left a valid will, the designated personal representative nominated in the will has preference to serve. If the decedent did not leave a valid will, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs.

In almost all instances the personal representative must be represented by a Florida probate lawyer. Many legal issues arise, even in the simplest estate administration. The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative is not the attorney for the beneficiaries. A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding on the personal representative.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice of administration (or after January 1, 2002, a notice to creditors), a creditor or other claimant may file a document called a “statement of claim” against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the “nonclaim period.” The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim. The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as being interested in the estate until the claim has been satisfied or otherwise disposed of.

For federal income tax purposes, death triggers two things. It ends the decedent’s last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the “estate.” The personal representative may be required to file the following returns, depending on income of the decedent, income of the estate and size of the estate: Final Form 1040 income tax return, reporting income for the decedent’s final tax year. One or more Form 1041 income tax returns for the estate, reporting income for the estate. Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death. Form 706 estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate The personal representative may be required to file other returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent’s death (including tax returns that were filed by the decedent or that should have been filed). The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the court.

The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. “If the decedent died prior to January 1, 2000, the personal representative is also required to file a Preliminary Notice and Report with the Florida Department of Revenue. If the decedent died after December 31, 1999, and a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If the decedent died after December 31, 1999 and a federal estate tax return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue.” Regarding Florida’s intangible tax, the Florida Department of Revenue may review the inventory to determine whether the estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax. Regarding federal estate taxes, the Florida Department of Revenue may receive all or a portion of the “state death tax credit” amount allowed by the IRS. For estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a marital agreement to the contrary, a surviving spouse may have homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by an attorney.

Under Florida law, as with most other states, a descendent may entirely disinherit other potential beneficiaries.

For estates not required to file a federal estate tax return, the final accounting and papers to close the probate administration are due within 12 months of issuance of letters of administration. This period can be extended, after notice to interested persons. The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the court because often the IRS’ review and acceptance of the estate tax return are not completed within that period. Estates that are not required to file a federal estate tax return and that do not involve litigation may often close in five or six months.

The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation. The fee for the personal representative is usually determined in one of five ways: as set forth in the will; set forth in a contract between the personal representative and the decedent; as agreed among the personal representative and the persons who bear the impact of the fee; as the amount presumed to be reasonable as calculated under Florida law if the amount is without objection; or as determined by the judge, applying Florida law. Likewise, the fee for the attorney for the personal representative is usually determined: as agreed among the attorney, the personal representative and the persons who bear the impact of the fee, as the amount presumed to be reasonable calculated under Florida law, if the amount is without objection, or as determined by the judge, applying Florida law.

Florida law provides for four alternate, abbreviated procedures other than Formal Administration. Until January 1, 2002, Family Administration is generally available if beneficiaries consist solely of a surviving spouse, lineal descendants (i.e., children, grandchildren, great grandchildren, etc.) or lineal ascendants (i.e., parents, grandparents, great grandparents, etc.), and the value of the gross estate for federal estate tax purposes is less than $60,000. Summary Administration is generally available if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $25,000 or the decedent has been dead for more than two years. Beginning January 1, 2002, the $25,000 amount referred to above changes to $75,000. Under Family Administration and Summary Administration, the persons who receive the estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Administration by publication of notice in a local newspaper. In a Family Administration, the two-year period may be reduced by using Formal Administration until all claims of creditors have been barred. The third alternative to Formal Administration is “Disposition Without Administration.” This is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness. The fourth alternative to Formal Administration is only available for decedents who were not Florida residents as of death. This is to admit the will of a nonresident decedent to record, if certain requirements are met and the will devises Florida real estate or any right in Florida real estate. When admitted to record in any Florida county where the real estate is located, the “foreign will” serves to pass title to the real estate as if the will had been admitted to probate. This procedure is available only if either two years have passed from the decedent’s death or the domiciliary personal representative has been discharged and there has been no estate administration in Florida.

No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent’s assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent’s estate. The right of the surviving spouse to receive from the decedent’s estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune. If you need to speak with a Florida Probate Attorney, call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125 for a free consultation. Read more about Florida Probate.

Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence. Heasley v. Evans, 104 So.l 2d 854, 857 (Fla. 2d DCA 1958).

Experienced estate attorneys always counsel families to avoid a legal fight – if they can. When a loved one or family member dies, fights and controversies can arise concerning the property that must be distributed after death. At our firm, we believe that estate lawyers representing beneficiaries, heirs, friends, family members, or designated charities in the Last Will & Testament or other testamentary documents (for example, a Trust) should attempt at first to informally negotiate an honest, fair and prompt response to any estate dispute or probate problem. Florida probate lawyers see many emotional disputes over property because a large segment of the state’s population is retired senior citizens. Often, the experienced counsel of an estate attorney to the grieving parties can be enough to resolve the property issues quickly and in a satisfactory manner for everyone. Sometimes, a legal fight cannot be avoided – negotiated settlements In some matters, problems are more serious and probate lawyers will need to find a more structured resolution to the controversies. Whether a family is facing a Florida will contest, trust litigation or probate lawsuit, an experienced probate lawyer can organize a more formal settlement process and thereafter structure the settlement to protect the client’s rights. There will be occasions of wrongdoing — a full probate lawsuit in a Florida courtroom can be necessary Unfortunately, there will be occasions where the death of a loved one or family member may be followed by a lawsuit over his property — and this lawsuit will be a necessity. The veteran probate lawyers at Adrian Philip Thomas, P.A. have seen many situations where only a courtroom challenge can stop wrongdoing that has occurred. When a family member, second spouse, neighbor, or home health care aid improperly places himself into a Last Will and Testament or Revocable Trust — and that defendant refuses to negotiate fairly — it may become crucial for a probate lawyer to file a lawsuit and litigate the case in a Florida courtroom to have an inheritance or gift protected and returned. Adrian Philip Thomas, P.A. is a law firm of Florida probate lawyers respecting the wishes of the decedent while serving the interests of the client in both will contest and trust controversies Wills. Whether an estate dispute rises to the level of a Florida will contest or is best resolved by informal negotiations or structured settlements is an issue to be determined by an experienced Florida probate lawyer, who can honestly evaluate the merits of the case with a client.For example, in a Last Will and Testament dispute, an heir usually has some basic facts to support that he has been unfairly omitted from the will, removed from the trust, or not included in the estate administration or probate process. At our firm, experienced probate lawyers investigate these facts to determine whether a case exists. In the case of surviving spouses, Florida law provides an elective share for widow(ers) of up to 30 percent of the decedent’s estate in lieu of what the will provides.How? We believe that a good, aggressive estate lawyer combines the client’s beliefs with the opinion of the estate attorney. The probate lawyer take the facts and then adds the Florida statutory and case law that establishes clear rules regarding probate litigation and grounds for a will contest. Together, these will assist the client in making the final decision on whether to retain an estate attorney and to proceed with the matter. Mr. Thomas and his team of estate attorneys are very capable of combining these numerous factors to advise potential clients. What kind of lawsuits or will contest? Evaluating facts and evidence with an experienced probate lawyer like Mr. Thomas may lead to the conclusion that grounds exist to support a lawsuit for an undue influence claim (challenging whether the testator freely and voluntarily made a will) or a lawsuit based on lack of testamentary capacity (challenging whether the testator had sufficient mental capacity to understand the nature, details and ramifications of a Will).Regardless of the actual lawsuit filed, the analysis must be done in a comprehensive manner by an experienced Florida probate lawyer before engaging in estate litigation or a probate challenge. For example, the estate attorney may discover that the witnesses to the Last Will and Testament did not sign in the presence of the testator or each other, which causes the will to be invalid under Florida law, and presents additional grounds to file a lawsuit. What about trusts? Trust litigation may challenge the validity of a trust in a manner similar to a Florida Will Contest, where undue influence or lack of capacity are alleged, or it may include a trust construction proceeding, where an estate lawyer is hired to seek court interpretation of the document language to determine the rightful trust beneficiaries. Trust construction is necessary when the trust document is unclear or is contradictory regarding the identity of beneficiaries, the allocation of estate and/or income taxes, the interests of lifetime beneficiaries, interests of remainder beneficiaries or the operation of gift and distributive property provisions. The probate lawyer is hired to obtain the Florida judge’s decision on how the trust language should be read. Trust reformation is another specialized area of trust litigation. Here, the court is asked to reform or change a trust, either to fix a trust problem or to modify it to reflect the true intention of the testator. Sometimes, our firm is hired by a beneficiary to monitor the trustee’s activities or to compel a fair and accurate accounting. Other times, we are hired by the trustee to help ensure that he or she is doing the job correctly and not inadvertently breaching a fiduciary duty to the beneficiaries.

Adrian Philip Thomas, P.A. is located in central downtown Fort Lauderdale, Florida on historic Las Olas Boulevard, which is one block from the Fort Lauderdale courthouse where Broward County probate and trust disputes are litigated. While most meetings are scheduled during normal business hours, special arrangements can be made for conferences outside of those times – at night and on weekends. Just call and ask for an appointment.

South Florida is home to approximately 5.5 million people and with its intense population and geographical size, clients are sometimes uncertain as to whether the lawyers of Adrian Philip Thomas, P.A. will handle a case in a specific geographical area. First and foremost, our firm is made up of Florida probate lawyers and the law firm represents clients dealing with probate and estate issues that involve Florida law. They can help clients anywhere in the State of Florida. However, our firm represents clients who are predominantly from the Tri-County area, which includes Broward, Miami-Dade and West Palm Beach Counties. Broward is comprised of the following cities Coconut Creek, Coral Springs, Dania Beach, Davie, Deerfield Beach, Fort Lauderdale, Hallandale Beach, Hollywood, Lauderhill, Lighthouse Point, Margate, Miramar | Oakland Park | Pembroke Pines | Plantation | Pompano Beach | Tamarac | Weston | Wilton Manors. Miami-Dade County has the following cities Aventura | Bal Harbour | Bay Harbor Islands | Coral Gables | Hialeah | Hialeah Gardens | Homestead | Key Biscayne | Miami | Miami Beach | North Miami | North Miami Beach | Pinecrest | Surfside. Palm Beach has the following cities Boca Raton | Boynton Beach | Delray Beach | Greenacres | Highland Beach | Hypoluxo | Juno Beach | Jupiter | Lake Park | Lake Worth | Lantana | Ocean Ridge | Palm Beach | Palm Beach Gardens | Royal Palm Beach | Wellington | West Palm Beach.