Florida Estate Planning Lawyer Blog

Once the personal representative (PR or executor) is appointed by a Florida court, takes the oath of office, and posts bond (if required), then he or she is authorized to administer the decedent's estate. A Florida personal representative has a fiduciary responsibility to the creditors, the IRS, and the beneficiaries for proper administration of the estate. The personal representative must not comingle the estate's funds with his or her own funds, and needs to be fully accountable for all of the decedent's property during the administration of the estate. The personal representative may sell some or all of the assets of the estate to raise cash to pay the debts and expenses of the estate, if necessary or appropriate.

The personal representative is obligated to:

a) Identify, gather, value, and safeguard the assets.
b) Publish the "notice to creditors" in a local newspaper, giving creditors an opportunity to file claims relating to the estate.
c) Serve "notice of administration" on specific persons, giving information about the estate and giving notice of requirements to file any objections relating to the estate.
d) Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
e) Contact the Social Security Administration and the Veteran's Administration to apply for any death benefits or survivor benefits for which the decedent's estate may be eligible.
f) Locate insurance policies and apply for benefits if the proceeds are payable to the estate.
g) Contact the decedent's employer and any club or fraternal organization to which the decedent may have belonged to determine if the estate or surviving family members are entitled to any benefits.
h) Examine the circumstances surrounding the decedent's death to determine if there are any claims against third parties, which need to be asserted or preserved, such as claims for wrongful death or worker's compensation.
i) Collect rents, accounts receivable, interest, dividends and other income due to the decedent prior to death and that becomes due to the estate thereafter.
j) Assume the responsibility for any litigation or settlement of pending lawsuits in which the decedent had an interest.
k) Keep the property of the estate in good repair.
l) Keep the estate property invested properly until the administration is complete.
m) Locate and access any safe deposit boxes in the decedent's name.
n) Object to improper claims and defend suits brought on such claims.
o) Pay the valid claims.
p) File all past due and current tax returns.
q) Pay the taxes.
r) Employ necessary professionals to assist in the administration of the estate.
s) Pay the expenses of administration.
t) Distribute the statutory amounts or assets to the surviving spouse or family if claims are made.
u) Distribute the appropriate assets to beneficiaries.
v) Close the probate administration.

No personal representative shall be compelled to pay the debts of the decedent until after the expiration of five (5) months from the first publication of notice to creditors and is obligated to make payment of expenses of administration and creditors' claims against the estate in accordance with the priorities set forth in §733.707, Fla. Stat.

It is the PR's job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD '13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University "emboldened" her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale's negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

It is important to talk with a Florida Estate Planning Lawyer who is familiar with the Florida Wrongful Death Statute and requirements so that the correct form of probate is opened and unnecessary estate or personal assets are not waisted when there is no claim that can be recovered.

In Florida Probate is the legal process which occurs after death and is used to transfer assets and pay the debts of the person who is deceased. This process takes place in the Civil Court where the person lived at the time they passed away or in the county where the decedent owned property in Florida. Additionally, a probate proceeding is usually required in each state where the decedent owned property in their own name without a right of survivorship.

The basic steps to a Florida probate case are:

2. Filing a petition in the Probate Court


3. Heirs, beneficiaries, and creditors are identified.


4. Notice is delivered to all heirs and beneficiaries.


5. A public notice of petition is published in a local newspaper


6. For larger estates a Personal Representative appointed by the court and obtains letters of administration


7. An inventory of assets and debts is created.


8. Creditors claims are verified and disputed when necessary.


9. A proposed distribution of assets is presented to the Court.


10. The Court determines and approves the distribution of assets and actions of the Personal Representative.


11. The Probate is finalized through consent or by order of the Probate Judge.

A basic probate can be in the range of $1000-$1500 and larger estates typically are based on the assets in the estate. We will quote fixed fees for probates and even discount them in larger estates based on the statutory guidelines.

Timeshares can be problematic and one should consider owning the timeshare in a Trust or LLC, or holding ownership with another party as joint tenants with rights of survivorship in an effort to avoid an unnecessary probate

In Florida when a someone dies family members will need to compile a list of important information to deal with the estate. These documents will include what the deceased person owned, a list of their creditors and the amount of money owed at the time of death. To help get you started, here is a list of documents that need to be located:

1. Account statements


2. Life insurance policies


3. Beneficiary designations


4. Deeds for real estate


5. Automobile and boat titles


6. Stock and bond certificates


7. Business documents

In addition you may want to request our Free Florida Probate Hanbook to help you understand the process. When you request the handbook, be sure to ask any specific questions you may have.

If your last parent in Florida has passed away leaving their Jacksonville home, how do you proceed if you want to sell the house? A Florida deed transfers title to real property from one person(s) to another. Generally before anyone will purchase a property, they will require clear title to the real property.

Whether your surviving parent died with a Florida Will or without a Will (intestate), if you want to sell the home, title to the property will need to be transferred to your parents to the named beneficiary or heir. A Florida probate proceeding is necessary to transfer title to the real property in such a way as to establish clear title. Florida statutes require that a Jacksonville Probate Lawyer or a Florida Probate Lawyer is used to represent the Personal Representative or Estate when there is more than one heir in an estate.

An Orange Park daughter loses her mother and only then realizes that the deed to the family home was in her father's name, alone. Her father had children from a previous marriage, her father died many years ago, and her father did not leave a Will. According to the Florida Intestate Succession law if one dies without a will, property passes in a specific manner. Once the mother passed away, the home would then pass to the father's children, all of them.

Whether you have a relationship with your half-siblings and whether you know where they are currently living, may make a difference in how easy or complicated your efforts to obtain ownership of the family home will be. If you need advice, or are wondering what you should expect in your efforts to obtain title to the home, speaking with experienced Orange Park probate attorneys will benefit you.

The ABA Journal recently reported an unusual case when an attorney's client was targeted for murder by his own brother. The parents of the brothers passed away leaving an unexpected $20 million dollar estate. The brother's were the sole heirs of the estate, but apparently sharing the money was not in the one brothers plan. He was arrested for putting a murder contract out on his younger brother.

Money does crazy things to people. A consulting with a Ponte Vedra Estate Planning Law Firm may offer numerous ways in which you can provide for your heirs, which may prevent them from receiving too large of an inheritance at one time. Discussing the benefits of preparing a Florida will or Florida trust can be an important tool for anyone leaving assets to children or other family members.

If you are a named beneficiary in someone's will, or if you expect a conflict with other beneficiaries, a Ponte Vedra Probate Firm can guide you through the probate procedure and any adversarial proceedings which may arise.

You have recently lost your uncle. He did not own a Florida home or real property but had bank accounts including a money market, CD's and a checking account. The accounts were solely in the uncle's name. His wife passed away years ago and he had no children. Whether there was a Florida Will or not, a Jacksonville probate proceeding must be initiated to transfer the uncle's property (financial accounts) to the proper beneficiaries.

If there is an indication that the bank accounts are less than $75,000.00 you may elect to go forth with a summary administration. A Florida Summary Administration is a shortened probate procedure in Florida and is available if the person who passed away has been dead for more than two years or if the person's estate, (less the value of any exempt property) does not exceed $75,000.00.

Before the Jacksonville Probate Judge will issue the Order of administration providing for the distribution of property, the petitioner (person initiating the probate proceeding) must show the judge that all known creditors have been given notice and an opportunity to make a claim against the Florida estate.

If you have lost a family member and need advice as to whether a summary administration is the best way for you to proceed, speak with a Jacksonville Beach Probate Attorney who can discuss the Florida Summary Administration and other Florida Probate options.

A Florida Personal Representative is appointed by the probate judge to settle the decedent's (person who died) estate and distribute the property to the beneficiaries. When an Orange Park resident dies without leaving a will (dies intestate), Florida Statutes, Section 733.301 provides for the preference in appointment of a personal representative. The order of appointment is:

• Surviving spouse;
• Person selected by a majority in interest of the heirs;
• Heir nearest in degree;

A guardian of the property of minor children may serve if qualified, or may select the personal representative.

Where a person died intestate, with no surviving spouse, leaving two minor children, a Florida court reversed the appointment of the decedent's father as personal representative, instead of the individual chosen by the heirs (the children). The Florida court stated that there was no surviving spouse and the person selected by both heirs, acting through the guardians of their property, was authorized and qualified under Florida Law to act as the personal representative.

If you have been named as a Personal Representative in a will or you believe you qualify for appointment when there is no will, it is important to speak with an  Orange Park Probate Attorney, about the Personal Representative duties and rights under the law.

A lost Florida Will is a will that was lost or destroyed without the decedent's knowledge or consent and without his or her intent to revoke. The original Florida Will of a testator can be revoked in a number of ways but the individual must have the intent to revoke the will. When the original will of the decedent cannot be located after her death, it is presumed that the will was destroyed with the intent to revoke it. Overcoming this presumption in Florida requires the proponent of a lost will to carry the burden of introducing competent and substantial evidence.

In the recent case Brennan v. Estate of Brennan, the issue addressed by the 5th District Court of Appeals was whether affidavits alone are enough to prove a lost will or whether live witness testimony is required. Relying on a similar issue addressed by the Florida Supreme Court and the 3rd DCA, the 5th DCA determined that in order for a lost will to be admitted to probate Fla. Stat. § 733.207 requires testimony of one disinterested witness and a "correct copy" of the will, or testimony from two disinterested witnesses. Affidavits merely swearing the witnesses saw the decedent execute the lost will and that witness signed the will are insufficient to fulfill this requirement.

From this decision it is apparent that a draft of the will or some evidence be provided for admission to the probate court and depending on whether a "correct copy" of the will is offered, the testimony of one or two disinterested witnesses. Florida Probate issues are anything but simple so if you feel the need for assistance don't hesitate to contact a Florida Probate lawyer or Florida Estate Planning Lawyer. If you are considering a Florida Will modification, it may be wise to do a full disclosure to all beneficiaries and those close to you because it will provide peace knowing your final wishes have been acknowledged.

Yes, heirs have a right to see the will and to know everything about the assets and distributions. Yes, some personal effects can be distributed before the "will closes" or the probate is closed.

Florida probate laws include many protections for the beneficiaries of a probate estate. If you are a beneficiary under a Florida Will and there are assets that were required go through probate, you should have received some notifications.

You should require that the Custodian of the will deposit it with the court. If they refuse, they can be ordered to by the court and are subject to reimbursement of your legal fees.

If you have a relative that is unwilling to share the contents of a Florida Will you should contact a Florida Estate Planning Lawyer or Florida Probate Lawyer to discuss your options.

Note, in Florida you do not have any right to see a will while they are still alive.

as a Jacksonville Foreclosure Lawyers who also practices Florida Probate Law I see many Florida Estates where the decedent's home has negative equity. If you are appointed the Personal Representative of a Florida Probate you should explore Florida Foreclosure Defense. You may have a fiduciary duty to do so and preserve the assets of the estate.

If you are considering a Florida Foreclosure Defense you will need to do a Formal Administration of the Probate so that a Florida Personal Representative can be appointed to defend the Florida Foreclosure and pursue counterclaims on behalf of the decedent's estate or beneficiaries.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

Virtual adoption is not defined under the Florida Statutes. There was a recent Florida Bar article entitled Virtual Adoption: Not Just for Netizens written by Brian R. Dolan and Joel M. Commerford.

The Fifth District Court of Appeal listed the following elements which are necessary to establish a virtual adoption:

1. An agreement [to adopt] between the natural and adoptive parents;
2. Performance by the natural parent[s] of the child in giving up custody;
3. Performance by the child by living in the home of the adoptive parents;
4. Partial performance by the foster parents in taking the child into the home and treating the child as their child; and
5. Intestacy of the foster parents.

All five elements must be present, and these elements must be proven by clear and convincing evidence.

A virtual adoption means that the person is an heir and a possible PR.

In Florida, A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.

(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.

In addition a Florida Personal Representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.

If the probate estate is in excess of $100,000 and there are 2 personal representatives, each shall be entitle to a full fee. If there are more than 2, then the PR in possession of the home shall be entitled to a full fee, and the remaining shall split an additional fee.

If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent's death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative's services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative's participation in tax planning for the estate and the estate's beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

Is a Florida Probate required if the decedent had a living trust?
Most people do not transfer all of their assets into a Florida Revocable Trust prior to their death. If their home, or other personal property was not transferred into the trust prior to their death, a Florida Probate may still be required to properly dispose of the remaining assets. Often bank accounts, IRA's, land, business interests, or other assets are not transferred property.

The probate will typically take the remaining assets and follow the instructions of the Florida Will to distribute them. If the will directs the assets to a trust it is called a Pour-over will.

What happens if the Florida Will directs the assets to a non-existent trust. Unless the Florida Will contemplates this, the assets will be transferred by the residuary clause in the will or in the case that this does not exist, they will transfer under the Florida intestate statutes or as if there was no will.

If you are looking to find out about Florida Beneficiary rights, or how property should be transferred in a Florida Probate Contact a Florida Estate Planning Lawyer