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Are All Estates Required to Go Through Probate in Florida?
In most states, probate is a requirement when someone dies, but not all estates have to go through probate in Florida. For example, if the decedent left a will and the estates were distributed without contest, the probate process would be easier and shorter. However, there are some situations where the probate process is inevitably long and tiring, such as when the decedent's property was co-owned, and there were no legal provisions for the transfer of property after death.
For first-time executors or administrators of a will, probate can be a tiring and confusing process. In addition, they'll be required to perform several other duties, such as gathering the decedent's assets and paying their outstanding taxes and debts. These duties, coupled with bereavement, can be stressful to both the family and the executors of the will.
And given that probate laws differ by state, Florida is no exception.
Here's what to expect from the probate process in Florida, covering all the legal procedures and where to find help when you need to.
An Overview of the Probate Process in Florida
Probate is a court-monitored proceeding that seeks to authenticate a will and its executor after the death of an individual. If the will doesn't have an executor, or the executor isn't willing to take up the role, the probate court will appoint an administrator to perform the administrative duties of the probate process.
The primary role of the executor and the administrator is to carry out the last wishes of the decedent, which include distributing the estates according to the will. The executor is also required to perform other responsibilities, such as:
- Gathering the estates of the decedent.
- Paying outstanding taxes and debts of the decedent.
- Managing and closing the decedent's accounts.
Florida has three types of probate laws. They include:
Formal administration is the most common probate process that takes place at the County Circuit Court when an individual dies. First, the court authenticates the will and approves the executor of the will to perform the administrative duties of the probate process.
Afterward, the heirs, legatees, and beneficiaries of the defendant are notified about the beginning of the process. If any of the beneficiaries of the will have any objections, they can raise it formally and have the court hear their complaints before the distribution begins.
Summary administration is a simplified version of probate in Florida. It involves small estates whose:
- Total value is $75,000 or less.
- The owners have been dead for over two years.
- Creditors are barred.
In Florida, creditors have two years to file any debt claims of a deceased person. After two years, they'll be barred from claiming any payments.
The surviving spouse or beneficiary of the decedent starts the process by filing a petition for Summary Administration. Since there are no notices to be issued out to creditors during this process, it's often completed within 1 or 2 months of filing the petition.
Disposition Without Administration
This type of probate skips the probate hearing process under specific circumstances. Instead, the beneficiary will be required to file a Disposition of Personal Property Without Administration form to recover any assets left by the decedent. This happens if the deceased didn't leave any estate or if its value is lower than the cost of going through probate administration.
There are two other distinctive features of the Florida probate laws.
Firstly, assets that go through the probate administration in the state are those that were fully owned by the decedent at the time of their death. Those that were jointly owned by the decedent don't go through probate.
Secondly, assets located in the state and owned by a decedent who was formerly a resident undergo the domiciliary probate administration. On the other hand, assets located in the state but owned by a decedent who wasn't a resident undergo the ancillary probate administration.
Common Probate Issues in Florida
Probate isn't always a smooth process, even when there's a will or trust. This process can be dragged for many months or even years because of property wrangles that arise among families and beneficiaries of the decedent's estates.
Luckily, some laws protect survivors of the decedent, e.g., the spouse, even if they haven't been mentioned in the will. All it takes is a good probate lawyer from a reputable law firm like Morgan & Morgan, who understands all the probate laws of the state of Florida.
Here are some common issues that arise during probate and how they're handled in Florida:
Contesting the Will
The heirs of the decedent's estates can challenge the will for many reasons. For example, a beneficiary may believe that the decedent wrote the will under undue influence, coercion, fraud, or any other legally acceptable reason. However, the challenger must have proof of the claims to validate why the will shouldn't be enforced.
Any parties considered as 'interested persons' can contest the will in Florida. Although the term is broad, the decedent's beneficiaries, children, and heirs are the most common parties. Spouses too can contest the will if their rights aren't honored by the will. A surviving spouse is entitled to receive:
- An elective share of the estate (usually 30%).
- A family allowance of up to $18,000.
- An interest in the primary estate of the couple.
Spouses face many challenges trying to claim their fair share of the estate, especially if the will didn't adequately provide for them. Additionally, the will can only be contested within a short period, usually three months after receiving the probate notice. That makes it more difficult to gather all the required evidence to present in such a contest.
Hiring a probate lawyer in Florida may be the best decision if you find yourself in such a situation. Precisely, Morgan & Morgan has some of the best Florida probate lawyers to represent you through the will contesting process. As a result, you don't have to bear the grief of losing your loved one and the pain of fighting for your rights all alone.
Executor Not Fulfilling Fiduciary Duties
The executor or personal representative, as sometimes called, has to perform all their duties as required by the law. If they breach the law or cause any financial harm to the estates, the beneficiaries can claim damages to recover their money. Some of the common breaches of fiduciary duties include:
- Poorly investing the estates on behalf of the beneficiaries.
- Mismanaging or stealing assets.
- Self-dealing to benefit from the assets.
- Any violation of the probate laws of the state of Florida.
Abusing Powers of Attorney and Financial Exploitation
Sometimes, people take advantage of the vulnerability of the elderly to steal from them. The Powers of Attorney (POA) is sadly one of the commonly abused powers.
POA is a legal document that authorizes an individual to perform several duties on behalf of the other when unable to do so themselves.
However, some individuals use these POAs to misappropriate funds, conduct gift transfers to themselves, forge checks, among other fraudulent crimes. Such crimes can deplete the beneficiaries' inheritance or cause more serious financial damages to the estates.
Even though seniors may not be mentally stable to defend themselves, you need to contact a probate lawyer if you believe that they're financially exploited.
Estate Planning Mistakes
Writing a will or a trust is an important part of estate planning that shouldn't be taken for granted. However, an estate planning lawyer can make mistakes while writing these documents leading to several issues in the future, such as challenging the will.
While this may happen unintentionally, such issues must be addressed before a probate attorney who's familiar with Florida's probate laws.
How to Avoid Probate in Florida
Although probate is a necessary process when someone dies, you can avoid it altogether by carefully planning for your estates while you're still alive. Here are ways to skip the probate process:
Create Living Trust Wills
One way of avoiding the probate process is creating a trust will. This way, you'll be able to transfer your property, including estate, bank accounts, vehicles, and more, to a third party on behalf of the beneficiaries.
You'll then name a trustee to take over the trust when the time is right, but before then, the third party will be responsible for managing the estates. Then, after your death, these assets will be transferred to the beneficiaries without going through the probate process.
Payable-on-Death Bank Accounts
You can place a payable on death designation on your bank account such that the beneficiary of the account can claim the money directly from the bank upon your death. However, you'll still have control over the money whenever you want. But after your death, your beneficiary can access the money directly from the bank without the probate administration process.
Similarly, if you have stocks and bonds that you'd like to transfer to a particular beneficiary at the time of your death, you'll register the account as a Transfer-On-Death (TOD). In this case, the beneficiary will automatically inherit your account upon your death. All they'll have to do is work with the brokerage company.
Suppose a co-owned property has provision for the right of survivorship on a jointly owned property. In that case, it'll be automatically transferred to the surviving partner after your death without needing probate.
However, the surviving partner must have documents proving that they are the sole owners of the property after your death. There are two types of joint ownership in Florida: joint tenancy and tenancy by the entirety.
Why You Need a Probate Attorney in Florida
An experienced Florida probate attorney simplifies the whole probate process. This is because when going through the probate process in Florida, you'll need to consider the following factors:
- Florida statute of limitations on the filing deadlines of different probate litigations.
- How to distribute estate that has no will in Florida (intestate estate).
- The costs of probate in Florida.
- The court appearances and probate hearings.
- Dispute on business assets owned by the decedent.
This whole process can be overwhelming, especially when grieving the death of a loved one. You don't deserve to experience such pain at a time when all you need is peace.
For this reason, a probate attorney from Morgan & Morgan will take care of all your probate litigations, ensuring a free and fair process. We understand how overwhelming this process can be, and that's why we're here to help.
All you need to do is give us a call at 877-444-8599, and we'll provide you with a free case evaluation!
Why Does a Personal Representative Need an Attorney?
There are so many legal issues that can arise during the probate process that the personal representative may find it difficult to handle. For this reason, an attorney helps the personal representative with vital legal advice on how to tackle probate issues. Better still, the attorney can also represent the personal representative in the probate proceedings.
What Are the Rights of the Family in a Probate Case in Florida?
In general, Florida probate laws protect the children and surviving spouse of a decedent. Even though the will doesn't explicitly mention what a spouse should inherit, probate laws in Florida define the portion of the estate that belongs to the surviving spouse.
How Long Does Probate Take in Florida?
Probate can take anywhere between a few months to even a year, depending on the complexity of the case.
Can a Spouse Be Removed From a Will or Trust in Florida?
The surviving spouse is entitled to an elective share of approximately 30% even when there's no valid marital agreement. However, given the technicalities involved in enforcing probate laws, such a spouse may need a probate lawyer to help them fight for what they rightfully deserve.
Call Morgan & Morgan When You Need A Probate Lawyer in Florida
Probate laws are complex and usually involve a lot of technicalities. Without sound legal advice, you may miss out on what you're entitled to as a beneficiary or creditors. That's where Morgan & Morgan, the largest injury law firm in the United States, comes in to provide some of the best probate lawyers in the country.
The Business Trial Group has handled thousands of probate cases in Florida and would be pleased to add you to their list of happy clients.
Call us today at 877-443-8599 for a no-cost, no-obligation probate case review, or drop us a message online!