Florida Estate Planning Lawyer Blog

There are certain times when a Probate case can use Formal Notice to reduce the time required and other times when it is required. Formal notice is defined by the Florida Probate Code to be notice which is sent by via certified mail to each interested person. Sometimes notice can be by publication when the whereabouts of a particular interested person or entity cannot be determined. This notice by publlication requires a much longer time period to the party to object than the 20 days when an interested party is serverd by formal notice. Some examples of when Formal Notice can or will be used include:

Petition for Administration
Petition to Determine Beneficiaries
Petition to Revoke The Probate of A Will
Petition to Probate Lost Will
Petition to Construe Will
Petition to Remove A Personal Representative
Petition to Surcharge Personal Representative
Petition to Cancel a Devise

There are 4 types of probate in Florida

1) Disposition without Administration.
This type of probate can only be used when the assets are less than the funeral bills and last medical expenses. This is available only if estate assets consist solely of property classified as exempt from the claims of the decedent's creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of:

1. up to $6,000 in funeral expenses; and


2. the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent's final illness.

Very few estates will qualify for this type of disposition. The steps involved in a Disposition without Administration are preparing documents and filing them along with a copy of the paid funeral bill.

The current court costs are $231 and the legal fees for this type of probate are the lowest of the three types of probates.

The approximate time frame is less than 30 days.

2) Summary Administration.

This type of probate can only be used when the total value of the assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. The steps involved in a summary administration are preparing the documents, publishing notice to creditors, determining homestead (if applicable) and having the funds distributed to creditors and beneficiaries per the court order.

The current court costs are $345, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is three to five months unless extraordinary circumstances such as a will contest occur. The estate cannot be closed while litigation is pending.

3) Formal Administration.

This type of probate is for all other estates or whenever a personal representative is required for other purposes. The steps involved in a formal administration are preparing the documents, getting a personal representative appointed, publishing notice to creditors, filing an inventory of the estate, determining homestead (if applicable), distributing the assets to creditors and beneficiaries, and closing the estate.
If you need Letters of Administration for any reason, or if the estate will be subject to litigation, you should open a formal administration.

The current court costs are $400, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is four to twelve months unless extraordinary circumstances such as litigation occur. The estate cannot be closed while litigation is pending.

4) Ancillary Administration.

Ancillary administrations are for secondary probate administrations when the decedent's primary estate was in another state, but there was also real property in Florida. Ancillary administrations follow the same procedures as a summary administration or formal administration depending on the date of death, value of the real property, and whether a personal representative is necessary.

The approximate time frames are the same as for the summary or formal administrations above. The estate cannot be closed while litigation is pending.

In Florida Florida Statute 733.301(1)(b)(2) defines how a minor child can participate in a probate proceeding. Minor children are not able to participate directly, but can do so through a court appointed guardian over their property. In a recent Florida case ouf of the 2nd District of Florida the Appelate court found that it is an error not to give the minor children a opportunity to have a guardian appointed before appointing a personal representative.

The court found that although the mother, as natural parent, had no right to select the personal representative, she did have the right to file objections on behalf of her children. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that "[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative."

Although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is "`in no sense' a statute of limitations or a mandatory non-claim provision." Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985).

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.

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.

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 Probate costs very based upon they type of probate, type of assets, number of creditors, number of beneficiaries and complexity of the issues involved.

Generally a simple Florida Probate which only involves a homestead is around $1500-$1800 dollars and can take 30 to 90 days on average to complete. This fee is for the legal expenses associated with a Florida Summary Administration where the descendant has been dead for more than 2 years or the assets subject to probate are less than $75,000. A homestead, join accounts, and life insurance are not counted as assets. In addition there will be court costs in the $300-400 range depending on the county and if advertising notice is required or desired.

More complex Florida Probate cases can also be handled on flat fees but many are calculated based upon a percentage of the assets subject to probate + some amount for dealing with the non-probate assets.

If you would like to get a quote on a Jacksonville Probate or a Florida probate you should Contact a Florida Probate lawyer. Only after a summary of what the circumstances are, can an accurate quote be given.

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.

Your Florida Estate Planning Lawyer will tell you that being appointed the PR / executor of an estate is not easy. The PR takes a personal risk and large responsibility to the estate of the decedent, the IRS, and the beneficiaries.

The main job of the PR is to manage the administration of an estate. Many small estates in Florida are distributed without the need of a Personal Representative or Executor. If the decedent had valid Florida Will, the PR can be name from the will, if not the court will appoint a PR based on qualifications and an order of priority. Generally the spouse is the first to be chosen as a PR, next the adult children along with any children who have legal guardians can be the PR. There is a statutory scheme to determining who will be the PR in a Florida Probate Case.

The PR will be responsible for locating the will, and additional documents to help determine what the debts and assets of the decedent are. In Florida probate requires a Florida Attorney. Once you are appointed as the PR, the court will issue you Letters of Administration. This document allows you to act on behalf of the estate. When you take actions, you will have to notify any interested parties (beneficiaries and creditors). The assets of the estate may be used to pay valid claims. One very important job of the PR is to file all current and final tax returns. This is one area where the PR has personal liability for unpaid taxes, penalties, and interest. Once all of the assets have been accounted for, creditors paid, and beneficiaries determined, the PR will distribute the remaining assets as instructed in the will or by the intestate statutes. The PR is also responsible for filing the accounting (a balance sheet showing the amount of the assets and whom they belong to).

The personal representative is entitled to compensation for the work that they do. The personal representative is also able to hire professionals or others to advise and administer aspects of the estates.

One of the first things your Florida Probate Lawyer should tell you is that as an executor or Personal Representative of a Florida Probate Case, you are personally liable for any unpaid taxes or penalties for the decedent.

Kimberly Martinez-Lejarza has a nice review of the Estate of Ziotowski v. Commissioner. This tax court held that the failure of the two executors to file the 706 estate return made them liable for the taxes, penalties, and interest even though their attorney failed to inform them of the tax, filing, and due date.

Kimberly does a good job of analyzing the case stating:

That there was no way the estate could possibly stand upon its argument of reasonable reliance on the advice of counsel: there was no evidence the executors had even asked their attorney for advice as to whether the return was due on time, let alone that they had received such advice. In its analysis, the court also pointed to testimony given by one of the executors that further demonstrated the executors' complete disengagement from the estate administration process, including the preparation of the estate tax return. In the end, the estate was held liable for the additional tax generated as a result of the late filing.

When it comes to taxes, you the PR is ultimately responsible. Make sure your Florida Probate Lawyer understands this before you learn the hard way

Florida Probate is a legal process through which your Florida Probate Lawyer / Attorney files documents so that the following can happen

(a) a judge determines whether or not the decedent's will if any is valid;
(b) a personal representative is appointed to:

(1) collect the decedent's assets in his or her probate estate,
(2) pay the decedent's legal debts, and
(3) distribute the remaining assets in the decedent's Florida probate estate to the individuals or entities entitled to the assets in accordance with the will or laws of Florida intestacy; and

(c) the court approves the transfer of the decedent's assets to the individuals and entities designated in the will or the laws of intestacy.

The probate court will also determine the rights, if any, of a spouse and children to the decedent's property in addition to what they have been left in the will and supervises any claims filed against the estate, objections to claims and probate claims which are barred by time.

Letters Of Administration: In a Florida probate that involves full or ancillary administration, Letters of administration are issued by the probate judge to a personal representative, showing that the personal representative has the authority to act on behalf of an estate.

Once letters are issued the Personal Representative many not do anything they want. The letters, while allowing the PR to act create liability for the PR as well as a fiduciary duty to the beneficiaries and creditors of the estate including the IRS. A PR should not forget to file the 1040 tax return for the last year, the 1041 tax return for income made during the administration of the estate, the 709 estate tax return, and make sure that any minimum required distributions from IRA's or other retirement accounts are removed by December 31 in the year that the decedent died. The PR becomes personally liable for any unpaid or late filing fees including interest that are due to the failure to file these returns timely.

Intestate property will pass to the decedents heirs. In Florida if a person has a surviving spouse and of their children are also children of the spouse, the surviving spouse will receive the first $60,000 then 50% of the remainder.

If the decedent had any children that were not children of the surviving spouse the children and the wife split the proceeds of the estate. If there are 4 children and 1 spouse then the spouse would receive 50% and the children would each receive 12.5% of the non-exempt assets of the estate.

Intestate: Refers to dying without a will or other designation of how one's property should pass.

The Florida Homestead exemption: In Florida, this refers to a surviving spouse's or lineal heirs right to receive the primary residence of their family member free of claims from creditors other then perfected security interests on it such as the mortgage. In Florida there is no limit to the value of the property that is covered by a Florida homestead exemption.

The Florida Homestead protection is found in Article X Section 4 of the Florida Constitution.

Although there may be limits placed on the Homestead Exemption by Federal Bankruptcy Law and Florida Medicaid planning through the 2005 Debt reduction act.

An invalid conveyance of a homestead in a decedents will is ineffective and results in a spouse receiving a life estate in the property with the remainder going to the decedents children per stripes.

The same result happens if there are minor children at the time one of the parent dies. The transfer of time is valid at the time of the decedents death, but this tile is not considered marketable tile by Florida Title Agencies. Because of this it is necessary to open a Florida Probate case for the decedent to transfer the property.

One can accomplish their desired goals by using a Florida Estate planning attorney who is familiar with Florida Homestead, Florida Elder Law, and the rules regarding the Florida Homestead protection in regards to Florida probate administration.

In a Florida probate case, where there is more than $75,000 of non-exempt property and the decedent died less than 2 years ago a Full or Formal administration is required. A formal administration can be used when the assets are lower than $75,000 but one can also do a summary administration.

Formal Probate: a proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by chapter 733 of Florida statutes.