Florida Estate Planning Lawyer Blog

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

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.

Most Florida Estate Planning Lawyer deal with planning for the unexpected and protecting your assets for those after we are gone. Part of this protection and planning often involves the use of the Florida Homestead. The Homestead Exemption is not exclusive to Florida. A recent case, a New York Representative is accused of claiming a Homestead exemption for a home located in Washington, D.C.

The homestead exemption varies from location to location, but it generally applies to one's primary home. Recently government officials have noted that even though this exemption was established in the late 1800s, still only few today take advantage of it.

Tax officials in several locations around the country, including Florida, have begun to crackdown on the number fraudulent claims that are being reported every year. The New York Times reported that Jennifer Frastai, City manager of Hallandale Florida, has begun an intensive effort to stop fraudulent homestead claims.

In Florida there are two homesteads. This article is dealing with the property tax credit with is often confused from the homestead that protects your residence from attacks by most creditors. While many states offer homestead credits for taxes, few offer unlimited protection from creditors. If you would like someone to review your estate planning documents to see if you qualify for either type of Florida Homestead Exemption, contact your local Florida Estate Planning Lawyer today.

The Homestead Exemption in Florida, which was established in the State's Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the "natural person" and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that "we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements." Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

In a Florida Probate , if the decedent was domiciled in Florida at the time of his death, the surviving spouse or if there is no surviving spouse, the children shall have the right to a share of the estate of the decedent as provided in Florida Statute 732.403.

Warning: You will waive your right to exempt property under Florida Statute 732.403 if you fail to file a petition to determine exempt property within 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will, or any other matter affecting any part of the estate subject to the Florida Intestate succession and Wills

If you need help with a Florida Probate or figuring out Florida Probate Fees Contact a Florida Probate Lawyer or Attorney for help

As the second marriage becomes more popular, it becomes more important than ever to protect your life insurance for your children. I received a call today where the second wife had changed the life insurance benefits to her name, as might be expected. Five months later the father of two children died. The second wife will receive all the benefits of the life insurance and non will go to help support the fathers biological children. When the wife dies, it is likely that the money will go to her biological children and the fathers children will receive nothing. What this the intent of the father? Probably not? Can anything be done to protect your assets for your descendants? yes

How can you allow a portion of the money to be available for the benefit of a second or third wife and give part to your biological children. One way is through changes in the beneficiary designations. Although this can be difficult and some companies require the consent of the spouse, it is not impossible.

The better way, is to set up a revocable trust. The trust can designate who you would like to receive the proceeds and how you want the money distributed. Even better, once you create the trust, you can amend it.

It is best to create the trust before you get married, and amend it when you choose. Paul A. Rabalais of the Estate Planning Law Firm of Louisiana Blog recently wrote a similar article on this topic that you may want to review for more information.

If you need help creating a Florida Revocable Trust Contact a Florida attorney who is familiar with Florida Estate Planning Documents

Invalid transfer of Florida Homestead with do it yourself deed leads to unintended consequences!

Man wants his second wife to have a life estate in his homestead after his death with the remainder to go to his children and not his second wife's children.

His mistake, he used a preprinted deed and filled it out wrong. The court found that he did validly convey a life estate to his wife, but did not convey the remainder of the property to his daughter because it must have been signed by both spouses.

The property went back to his heirs per stripes after his spouses death and not to his daughter as intended.

Florida's homestead provisions make it difficult to properly convey real property as you desire. There were valid ways of conveying the property correctly, but a preprinted form does not deal with non traditional families or non traditional conveyances.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3
Do it yourself Estate Planning: Bad News Part 4
Do it yourself Estate Planning: Bad News Part 5
Do it yourself Estate Planning: Bad News Part 6
Do it yourself Estate Planning: Bad News Part 7
Do it yourself Estate Planning: Bad News Part 8

This is a common mistake found in Florida Probate cases, when people try to make their own wills, or transfer their assets without getting professional help from an attorney or accountant who is familiar with the effects of gifting and estate planning.

If you have used software, a form, or an online service to prepare your will, a deed, or other document, you Contacta Florida Estate planning Attorney or Florida Estate Planning Lawyer to review your documents for potential problems.

Phillips v. Hirshon, 963 So. 2d 227 (Fla. 2007).
The supreme court agreed to hear a case which will determine if Florida's revisions to the homestead laws allow for a cooperative apartment to be considered homestead property for descent purposes. We should have an answer on this question by the end of April.

If you own a property and are concerned about its status as a Florida Homestead please Contact a Florida Estate Planning Lawyer to discuss your circumstances.

How can you tell if a Will has been altered?
Most of the time you cannot tell by simply looking at the document. Often these documents are "tampered with" behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
In Florida, an adult child can be cut out of a Florida Will . So long as the parent is competent. An adult child can be removed from a Last Will and Testament (or a Florida Revocable Trust) for any reason. If a child is not mentioned in a Florida Will , it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Florida Will , may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor child.

When is litigation the only option?
Often litigation is cause by a failure to communicate. You will find that if people communicate and treat each other fairly or as they would want others to treat them any disagreements can be resolved amicably and without the need for lawyers. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
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.

Normally a Florida Estate Planning Lawyer would advise against signing a deed conveying a home or other property without recording the deed.

What happens if a Florida deed or Florida Enhanced Life Estate Deed is signed but unrecorded?
Is the deed valid?
What risks are associated with unrecorded deeds?
Why would someone want to sign a deed but not record the deed in Florida?

A Florida Deed is not invalid just because it is not recorded. There is the potential for claims from other people if they record a deed before you record a deed. In Florida, when a deed is recorded there are taxes that must be paid on any outstanding mortgage. For every $1000 of mortgage a fee of $70 is charged. While this may not seem like much, if the loan is $100,000 the fee will be $700 and if the loan is $500,000 the fee is $3500. Often people want to transfer the ownership of their property but expect to pay off outstanding loans prior to their death. To save the fees, clients often ask about waiting to record the deed. We would generally advise against such actions as in Florida the first person to record a deed, who does not have notice of a prior deed, and who pays for the property will be considered the owner.

As people age, they may forget that they signed a prior deed, and sell the property to someone else. If that person records before you do, your claim or right to the property would be invalid. In addition, as people age, they are sometimes taken advantage of and do things against their will. Although there may be a claim for undue influence, these are very hard and expensive to prevail on.

Another potential problem could arise if your father's estate plan distributes the real estate to someone other than you. If your dad's will bequests the property to your sister and you go to record your deed, you might find yourself on the business end of a lawsuit involving the estate.

There is always a chance the rules relating to recording a deed change. The current sales disclosure form that must be filed with deeds needs to be signed by both parties.

Unrecorded deeds can be useful under certain limited conditions, such as death-bed planning. However, personally, I would generally be reluctant to advise using an unrecorded deed. When clients ask about them it is important to let them know the risks associated with them.

Each set of circumstances is unique and sometimes the use of an unrecorded deed in Florida is worth the risk. You should contact an Estate Planning Lawyer to review your needs and circumstances prior to executing an unrecorded deed.

A number of Texarkana residents have filed suit against sellers of living trust documents in a class action accusing the salesmen of exploiting senior citizens. This is similar to what I reported happening in California in December.

A Plaintiff says he purchased a living trust after attending a lunch presentation at a restaurant. He states the document was misrepresented and that if he dies with only these estate-planning documents, his estate will still need to be probated because the living trust failed to factor in his real property in Arkansas.

The living trust sellers are facing allegations of "masquerading as qualified financial advisers, estate planners, lawyers, and paralegals" to "exploit and prey" upon senior citizens with the creation and selling of "unnecessary and often useless" living trusts.

Defendants are accused of fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy. The suit alleges that the defendants created and sold the living trusts as part of a scheme to gain access to senior citizens' financial information in order to sell annuities and other financial products.

According to the original complaint, the scheme begins with advertisements that persuade senior citizens to attend a free lunch or dinner. At these meetings, the "unlicensed" living trust defendants conduct presentations and distribute materials that misrepresent the impact of probate fees and estate taxes in order to create fear that the senior citizens need to buy a trust to prevent heirs from losing their estate.

These presentations include references to celebrities such as Elvis and describe the large amounts these celebrities have paid in estate taxes. The plaintiffs state these presentations do not include information about the federal estate tax exemption, the sliding scale of the exemption amount, or the possibility of the elimination of future estate taxes.

Further, the presentation does not tell senior citizens with estates larger than the exemption amount that the purchase of these living trusts will not automatically eliminate all estate taxes. The forms and decisions made by the defendants fail to take into account the entire senior's assets and ultimately and fail to serve the legal purpose as presented, argue the plaintiffs.

The plaintiffs claims the presentations convince the senior citizens to use their IRA accounts or other tax-exempt growth products to purchase variable annuities. However, according to the plaintiffs' accusations, the presentations and documents do not demonstrate the redundancy with regard to a variable annuity's tax deferral benefit when purchased in a qualified plan and also do not inform the consumer of the associated fees, surrender charges and commissions associated with these variable annuity products.

These types of programs are everywhere. It is important to use a lawyer who will look at your individual assets and who is not trying to sell you other financial products. To review your estate planning needs contact a Florida Estate Planning Lawyer.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the distributions of a persons estate when is no will in a Florida probate case.
Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

• 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.

1. 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 $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.

2. 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.

For an evaluation of a Florida 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.

Starting January 1, 2008 every non-spouse designated beneficiary will have the option to rollover an inherited IRA and stretch distributions. To take advantage of this opportunity your Florida estate plan must be setup correctly to qualify for this rollover opportunity. You are not entitled to a rollover, you must prove you meet the technical legal requirements. Let’s take a look at why your family would not qualify for the new IRA rollover opportunity.

The IRS has very specific rules for how a trust can qualify as a see through trust and treated as a designated beneficiary. The top level bullet point requirements are:

The trust must be valid under state law;
The trust must be irrevocable or become irrevocable when the IRA owner dies;
The trust beneficiaries must be identifiable from the trust instrument;
Proper documentation must be provided to the IRA custodian.

Seems simple enough right? Remember, this is the IRS we are dealing with and they take income tax deferral very seriously because they think they are losing money. They have regulations on top of regulations on top of Private Letter Rulings and court decisions defining each one of those bullets in extensive detail. There is enough material to write a book on those four issues, and people have. I can’t get into detail on all of them here because it would take forever.

The most common issue is the requirement that beneficiaries be identifiable from the trust document. Often trust documents do not contain adequate language to comply with the IRS rule. Make sure you have the proper language to qualify for rollover treatment.

Rollover treatment is a privilege, not a right. Your family will not qualify for rollover treatment if you do not follow the rules in your estate plan. Make sure you and your Florida Estate Planning lawyer or attorney understands the requirements and that your estate plan doesn’t fall apart on this critical issue.

While credit is tight and many Jacksonville consumers are facing foreclosure on their homes, and attempts to collect old credit card debts, companies have been trying to use waiver of you homestead to collect debts. For over 100 years Jacksonville residents and those living in Florida have had been able to protect their home from claims of creditors. Arguably the home is one of the most valuable assets a Florida resident has. Recently there has been concern over the ability of a homeowner to waive their right to protection. The Florida courts have allowed people to waive many of their constitutionally protected rights, but up to now a waiver of ones Florida homestead protection was invalid except in the case of a valid pre or post nuptial agreement. This case represented the most recent attempt to allow waiver of ones constitutionally protected homestead protection.

In a case involving the Florida Constitution's exemption which protects homeowners' residences from forced sale, the Supreme Court of Florida reaffirms that, while the exemption can be waived in a mortgage, it cannot be waived in an unsecured agreement. The court rejects claims that it should recede from its precedent based on a constitutional amendment, a purported national trend approving such waivers, and recent holdings that other constitutional rights can be waived.
To review the case and the extensive analysis the Florida Supreme Court took read Chames v. Demayo

If you are having problems with collection agents trying to collect debts, credit card debts, or other types of debts, contact a Florida Business Lawyer, or Jacksonville Consumer Debt Lawyer.

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