What is Florida probate?

Probate is the court-supervised process of identifying and collecting the decedent's assets, paying the decedent's debts, and distributing the remainder to the decedent's beneficiaries. The Will must be filed with the Probate Court in the Florida county in which the decedent resided at the time of death. A circuit court judge presides over the proceedings.

What is a personal representative (executor)?

Called an executor in some states and the personal representative in Florida, this is the person, or a bank or trust company appointed by the probate judge to administer the decedent's estate. The personal representative is a fiduciary, i.e., a party with legal and financial responsibility to administer the Will in conformity with Florida law and the provisions of the Will.

If the decedent has a valid Will that names a personal representative, that individual or institution will be approved by the probate court, unless the nominated personal representative is found unqualified to serve or is unwilling to serve.

If the decedent failed to name a personal representative, died intestate, or the designated personal representative is found to be either unqualified or is unwilling to serve, the probate court will appoint a personal representative. The surviving spouse, if there is one, receives priority. If the decedent had no spouse, or if the spouse does not wish to serve, another person or institution may be selected by a majority of the decedent's heirs and approved by the probate court.


What are the duties of the personal representative under Florida law?

  • Identify, gather and safeguard the decedent's probate assets.
  • Publish a notice to creditors in a suitable local newspaper, alerting potential creditors that claims against the estate may be filed.
  • Conduct a search to locate "known or reasonably ascertainable" creditors, and notify those parties of the time deadline for failing a claim. Creditors generally have three months from date of notification to file a claim with the Clerk of the Circuit Court.
  • Pay valid claims, and object to improper claims, and defend suits brought on by such claims.
  • Serve a notice of administration, alerting interested parties that the estate is being probated, and outlining the steps that must be followed by anyone who objects to the administration of the estate.
  • File tax returns and pay any taxes that may be due.
  • Pay the expenses of administering the estate.
  • Pay statutory amounts to the decedent's surviving spouse or family. In Florida, an example of a statutory amount is the elective share (30% of the decedent's estate) to which the decedent's surviving spouse is entitled, unless the survivor waived the that right under a valid prenuptial or postnuptial agreement. A spouse may also have statutory rights to the decedent's Florida homestead property.
  • Distribute probate assets to beneficiaries.
  • Call upon professionals such as appraisers, investment advisors, lawyers, accountants, etc., to help with the administration of the probate estate.
  • Following the satisfaction of all creditors' claims, the personal representative must follow proper procedures to officially close the probate estate.

Does the Personal Representative have any liability?

Yes. As a fiduciary, if the personal representative mismanages the decedent's probate estate, the personal representative may have personal liability for any damages incurred by the beneficiaries of the estate.


Why is it necessary to hire a lawyer?

Florida law requires that an attorney represent the personal representative in probate court proceedings. Most personal representatives lack the extensive knowledge and time to handle the many duties and legal issues that arise, even in the simplest of probate cases. In any event, because the personal representative has liability in handling the estate, it is prudent to hire an experienced probate lawyer. Our experienced probate lawyers advise personal representatives of their rights, duties and obligations, and guide them through the Florida probate process.

Note that even if the will names a specific attorney to handle the probate, the personal representative is not bound to hire that lawyer, and may select any attorney he/she wishes.


What are probate assets?

Probate administration applies only to probatable assets, which are:

  • Assets owned solely by the decedent at the time of death that do not have a named death beneficiary.
  • Assets that are co-owned by the decedent but do not have a provision for an automatic succession at death. For example, if Person A and Person B co-own real property as "tenants in common" and A dies, A's share of the property will not automatically pass to the co-owner (This is in contrast to an asset that is co-owned as joint tenants with rights of survivorship, which means the surviving owner will automatically inherit the decedent's ownership in the asset and thus, the decedent's share of the asset would not be considered a probate asset.)

Is probate required if the estate is not taxable?

Yes. It is a common misconception that assets are probated only if they are part of a taxable estate. In fact, virtually all assets titled solely in the name of the decedent are probated if there is no named beneficiary, or a joint tenant with rights of survivorship, regardless of whether the estate is taxable.


What tax filings are required?

Taxes on the decedent's income during the last year, as well as taxes on the estate, may be due. The Karp Law Firm's Certified Public Accountant will assist the personal representative with these filings. Taxes are paid from the funds in the estate. If taxes are not properly paid, the personal representative may incur personal financial liability. Filings include:

  • Federal income tax return form 1040, reporting the decedent's income for the last tax year.
  • Federal Income tax return for the estate, reporting the estate's taxable income.
  • Federal Estate tax return form 706, reporting assets in the gross estate.
  • Federal Gift tax return form 709, reporting gifts made by the decedent.

Are there different types of Florida probate?

Yes. Our Florida probate attorneys will discuss the specific circumstances, examine the decedent's assets and advise the personal representative of the best approach. The three types of Florida probate are:

  • Formal administration: This is the longer version of probate in which letters of administration are issued to the personal representative.
  • Summary administration: This is a quicker process than formal administration and does not require the appointment of a personal representative. An estate may qualify for summary administration if the gross value of the probatable estate is $75,000 or less and there are no debts, or if two years have passed since the decedent's death and there has been no administration.
  • Ancillary administration: If the decedent did not reside in Florida but owned real property in Florida in his/her name only, the property will need to be probated in Florida, regardless of whether there is probate in another state.

What if the decedent did not have a will?

A person who dies without a valid will is said to have died "intestate." Probate is still required in order to identify assets, supervise payment of creditors, and distribute the decedent's probatable assets to heirs. Since there is no will that names beneficiaries, the Probate Cout will distribute any assets to heirs in conformity with Florida intestacy statutes. The order of beneficiary rights is as follows (effective Oct. 1, 2011): If there is a surviving spouse:

  • and no lineal descendants, the surviving spouse is entitled to the entire estate.
  • and there are lineal descendants, and all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the entire estate.
  • and there are lineal descendants, and not all lineal descendants are descendants of the surviving spouse, the surviving spouse is entitled to one-half of the probate estate, and the descendants of the deceased share the other half of the probate estate in equal shares.

If there is no surviving spouse and there are lineal descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of the decease parent (per stirpes).

If there is no surviving spouse and no children or other descendants, Florida law provices additional rules for distributing an estate in these circumstances.

LIVING WILL

A Living Will specifies what kind of life-extending care you do and don't want if you are in a terminal or end-stage condition, or in a persistent vegetative state. A Living Will must comply with Florida Statutes Section 765.03 and must be properly executed and witnessed. One of the witnesses may not be a blood relative or spouse of the maker.

Your Florida Living Will does not actually state that you are in an end-stage condition or persistent vegetative state. It merely indicates what kinds of treatments you prefer if you are ever in such circumstances.

Creating a Living Will can be a great kindness to family members, relieving them of the agonizing decision of whether to commence, continue, or terminate life-sustaining treatments.

If you execute a Living Will, remember that it doesn't do you or your family any good if it's squirreled away in a safe deposit box. Let your physicians and family know it exists; provide them with copies; and keep the original accessible.

Because the Living Will applies to only a narrow range of medical scenarios, it is not by itself sufficient protection for someone who wants to remain in control of his/her own medical destiny in dignity.


HEALTH CARE POWER OF ATTORNEY

The Health Care Power of Attorney allows you to designate another person to make your medical decisions if you become incapacitated and cannot express your own desires for medical treatment. Such a situation can arise not only as a result of permanent incapacity. It may be a temporary situation, for example, if you are under general anesthesia. The Health Care Power of Attorney should also contain language granting your agent and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, pursuant to the federal HIPAA laws.


HEALTH CARE SURROGATE

A Health Care Surrogate has the same authority as an agent under your Health Care Power of Attorney, with this difference: If you have so authorized in your Health Care Surrogate instrument, your surrogate may make health care decisions for you without the necessity for a determination of your incapacity. In our experience, most people wish to authorize someone to make their medical decisions on their behalf only if they are, in fact, incapacitated.


DO NOT RESUSCITATE ORDER

The Do Not Resuscitate Order (DNRO) is a document that must be signed by a physician and by you (or your health care power of attorney). The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. Emergency medical technicians must actually see this document in order to withhold resuscitation. Without seeing it, they are duty-bound to administer CPR.


PRE-NEED GUARDIAN

Guardianship is a court proceeding in which a guardian exercises the legal rights of an incapacitated person who is unable to exercise his own rights. A Guardian may be an individual, or an institution such as a bank trust department, with the authority granted by the court to care for an incapacitated person and/or the incapacitated person’s assets.

You may name in a written instrument a “pre-need” guardian – i.e., the individual you wish to be named as your guardian in the event you become incapacitated. The court is not bound to appoint your desired pre-need guardian for the job, but there is a presumption that the pre-need guardian shall serve unless the pre-need guardian refuses to act, or is found to be unqualified.


HEALTH CARE PROXY

What if an individual has failed to appoint health care decision-makers, and becomes incapacitated? In this case, Florida statutes apply. Florida law enables these individuals to make health care decisions for a perosn, in descending order of priority:

  • Guardian
  • Spouse
  • Adult child, or if more than one, a majority of the adult children who are reasonably available for consultation
  • Parent
  • Adult sibling, or if more than one, a majority of the adult siblings reasonably available for consultation
  • Adult relative who has exhibited special care and concern for the patient, has maintained regular contact with the patient, and is generally familiar with the patient’s activities, health, and religious or moral beliefs
  • Close friend
  • Under specific circumstances, a clinical social worker

Contact Norman C. Polak for Consultation


Email Me