Florida Estate Planning Lawyer Blog

In Florida, a creditor may open a probate to reach assets of a decedent which were kept in a trust. The trustee of a decedent's trust is responsible to file a notice of trust with the probate court. If you are unsuccessful in having the trust pay the debts directly, you can open a probate on behalf of the estate, file your claims and are entitled to be reimbursed for the legal expenses related to the opening of the probate. See Florida Statute 736.05053. Remember that failure to file a claim within 2 years of the decedents death can waive your rights to file a claim in the probate court.

If you are owned money by a decedent and can not figure out how to file a claim, contact a Florida Estate Planning Lawyer to discuss your options.

After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else's upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.

A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.

Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:

Class 1 - Costs, expenses of administration, and compensation of the personal representative and their attorneys fees

Class 2 - Reasonable Funeral, interment, and grave marker expenses, whether paid by a guardian, the PR or any other person not to exceed $6000. (Additional costs are treated as an unsecured creditor.

Class 3 - Debts and taxes with preference under federal law.

Class 4 - Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.

Class 5 - Family allowance.

Class 6 - Arrearage from court ordered child support.

Class 7 - Debts acquired after death by the continuation of the decedent's business, but only to the extent of the assets of that business.

Class 8 - All other claims including those founded on judgments or decrees rendered against the decedent during the decedent's lifetime, and any excess sums allowed in the Class 2 and Class 4 claims.

After paying the expenses in Class 1 - Class 7, if the estate is insufficient to pay all of the Class 8 claims, the Class 8 claims shall be pro-rated. If the probate estate does not have sufficient assets, any revocable trust's assets can be used.

How your Executor determines your heirs, should have been designated by you while you are alive through a will. The will is governed by Florida state law which mandates your Executor has a fiduciary duty to distribute your money and assets to whomever you state in your will should get the money or assets. The fiduciary duty is one of the highest duties one person can owe another. The fiduciary duty imparts on the person owing the duty (your Executor) the obligation of good faith, impartiality, honesty, and diligence. This basically means your Executor must act as if he or she was you making the decision while you were alive.

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 you have a Retirement Account in the State of Florida, a recently enacted law will provide your heirs stronger asset protection in Florida.

An individual Retirement Account is a form of retirement savings that provides tax benefits to the owner of the account. The account is primarily used as a means of saving for retirement. When the owner of an Individual Retirement Account dies, the account may be transferred to a named beneficiary. When transferred, it is known as an inherited Individual Retirement Account.

Generally, Florida law provides for protection of various assets from creditors, which protection extends to bankruptcy proceedings. Under the old Florida law, a regular Individual Retirement Account was exempt from creditor claims, but an inherited Individual Retirement Account was not.

However, House Bill 469 proposed to provide inherited Individual Retirement Accounts the same protection from creditors that the original Individual Retirement Account enjoyed. On May 31, 2001, Governor Rick Scott, signed HB 469, effectively making it the new law.

For more information about securing Florida Retirement Accounts and other Florida Estate Planning issues, contact a Jacksonville Estate Planning Lawyer today.

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.

When a Florida Wrongful Death action is settled, the money either goes to the estate of the decedent (the person who has died) or to the decedent's survivors. If the settlement is small, it can be handled with a summary administration. When this happens, the settlement money becomes an asset of the estate and can be subject to the claims of creditors. With small wrongful death settlements, the potential risk from creditors needs to be evaluated to see if the savings in probate fees makes it worth while to consider a summary administration. It is important for a Jacksonville beneficiary of the estate to sit down with a Jacksonville Probate Attorney who can guide you through the probate administration process.

Probate is the court supervised proceeding for distributing the estate assets of the person who died. The probate process also identifies creditors who have valid claims against the estate. If a wrongful death settlement is listed as an estate asset, then it may be susceptible to the valid claims of creditors.

If you are a Jacksonville survivor under the Florida Wrongful Death Statute, protect your settlement award by knowing what estate assets are exempt and protected from the claims of creditors. Talk with an attorney experienced in Florida Probate cases.

Creditors only have 90 days to file claims in a Florida Probate once notice has been published. For this reason it may be beneficial to publish notice as soon as possible. Unfortunately, you can only publish notice once a Personal Representative has been appointed. If there is a dispute about who will be the PR in a Florida Probate case the ability to publish notice to the creditors will not happen until the Florida Court appoints a Personal Representative.

Creditors claims are barred 90 days after publication or 2 years after the death of the decedent. If you have a question about a Florida Probate case or want to speak with a Jacksonville Probate Lawyer contact us by phone or email.

Whether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

Often when someone dies, they have money in a bank account that does not have a joint owner or a payable on death designation (POD). These banks often tell family members that they need "Letters of Administration" to distribute the funds. While this may be trust in some cases, most Florida Probate Courts will only issue Letters of Administration for Formal Probate Cases. If the decedent has been dead for more than 2 years or the assets subject to probate are less than $75,000 then you qualify under the Florida Probate code for a abbreviated probate process. This small estate administration is called Florida Summary Administration.

Once the court enters an order of summary administration, the court order can be used to collect and distribute the money in a bank account or other assets of the decedent.

Even if you qualify for the summary administration there may be reasons why a formal administration is preferable. You should discuss all the issue dealing with the assets, actions of the beneficiaries, and actions of fiduciaries while the decedent was alive with a Florida Probate Attorney to discuss which options make the most sense for you and your family.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Florida Estate Settlement is the process of gathering the assets of an estate and distributing them to the creditors and beneficiaries of the estate. In Florida this process is called a probate and generally requires the use of a Florida Probate Lawyer.

Most probate lawyers charge a percentage of the estate assets to handle the legal work involved. As Florida Estate Settlements get larger a percentage arrangement can become very expensive.

There is a wide range of fees charged for Florida Probate Administration and the Settlement of an estate. It is important to understand the nature and amount of assets and creditors to give a fair estimate of what a reasonable fee for a Florida probate should be.

Before you talk with a Florida Probate Attorney, you should gather as much information as possible. This will help them understand what steps will be necessary to administer the estate in question.

In Florida, the surviving spouse is not liable for claims against the decedent. Under the common law a husband was responsible for the deceased wife's expenses for necessities, last illness, and funeral expenses.

At common law, a married woman's legal identity merged with that of her husband, a condition known as coverture. She was unable to own property, enter into contracts, or receive credit. A married woman was therefore dependent upon her husband for maintenance and support, and he was under a corresponding legal duty to provide his wife with food, clothing, shelter, and medical services.

In 1995 the Florida Supreme court abrogated the common-law doctrine of necessaries in the case Connor v. Southwest Florida Regional medical Center, Inc., 668 So.2d 175 (FLA. 1995).

Now neither a husband nor a wife is liable for the other's expenses for necessities in Florida.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how creditors are dealt with in a Florida probate case.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of 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 "non-claim 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 a person interested in the estate until the claim has been satisfied or otherwise disposed of.

It is important to give creditors the proper notice in a Florida Probate Case. If you have questions about creditors and a Florida Probate proceeding please contact a Florida Probate Lawyer.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how fees are determined in a Florida probate case.

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:

(1) as set forth in the will;
(2) as set forth in a contract between the personal representative and the decedent;
(3) as agreed among the personal representative and the persons who bear the impact of the fee;
(4) as the amount presumed to be reasonable as calculated under Florida law if the amount is not objected to; or
(5) as determined by the judge, applying Florida law.

Likewise, the fee for the attorney for the personal representative is usually determined

(1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
(2) as the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to, or
(3) as determined by the judge, applying Florida law.

That being said each case is different and the fees depend on the type of assets, complexity of the case, and the conflict between the beneficiaries or heirs of the estate. To find out what a reasonable fee for a probate case please contact a Florida probate lawyer.

The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?

If you have questions about a Florida probate case please contact a Florida Probate Lawyer.