Florida Estate Planning Lawyer Blog

What is a Florida will?

A will is a written instrument, signed by the decedent and at least two witnesses in each others presence, that fulfills the requirements of Florida law. A will names the beneficiaries for the testator's probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a will was validly executed in another state, Florida courts will recognize the document as a will except in the case of a holographic will. Holographic wills are wills written entirely in the testators own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic wills be witnessed and signed in the same manner as any other Florida will.

What if there is not a Florida will?

In Florida if someone dies without a valid will they are said to have died 'intestate'. If they have a will when they die, they die 'testate'. If a person dies without a will, Florida statutes direct how their assets will be distributed based on whether the decedent had a spouse, children, children from outside the marriage, parents, siblings and so on. If a person dies without a will or any living relatives then his or her property will escheat to the state (become the property of the state).
If a person dies intestate, the decedent's probate assets will be distributed to the decedent's heirs in the following order of priority:

a) If the decedent was survived by a spouse but was not survived by any lineal descendants, the surviving spouse receives all of the decedent's estate.
b) If the decedent was survived by a spouse and was survived by one or more lineal descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse receives the entire intestate estate.
c) If the decedent was survived by a spouse and survived by one or more lineal descendants (at least one of whom is not also a lineal descendant of the surviving spouse), the surviving spouse receives one-half of the probate assets, and the decedent's lineal descendants share the remaining half.
d) If the decedent was not married at his or her death but was survived by one or more of his or her lineal descendants, those descendants will receive all of the decedent's estate. If there is more than one lineal descendant, the decedent's estate will be divided among them 'per stirpes' which is the manner prescribed by Florida law. The easiest way to understand per stirpes is to divide the assets at the first generational level where there is a survivor. If any of those individuals pre-deceased the decedent, their share will be split between their descendants, if any. If there are no surviving descendants, their share will not be counted when making the division between their siblings. Basically if you predecease your parents, your children will divide your share of your parent's estate. If you have no children or descendents, your share will go to your siblings.
e) If the decedent was not married at his or her death and had no surviving lineal descendants, the decedent's probate assets will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters if living, otherwise to the decedent's nieces and nephews.
f) Florida's intestate laws will pass the decedent's probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Do I need the original Will in Florida?

In Florida only an original will can be admitted to the court unless there are extenuating circumstances.

What happens if I cannot find the original Will?

A Will that cannot be found that was last seen in the hands of the testator is presumed to have been destroyed by the decedent. If a will has been destroyed by the decedent it is presumed that the decedent intended to revoke the will. It is possible to admit a copy when the original cannot be found and people can testify to its validity. This process is not guaranteed because you have to overcome the presumption that the testator destroyed the will intentionally.

Is a Will valid in Florida?

In order for a will to be admitted to court, it must be a validly executed will under the statutes governing Wills. For a Florida will to be valid, it must be signed at the end by the testator and two witnesses, who each in the presence of the other witness the testator's signature. It is not necessary that the testator sign their name, an X is sufficient. If the will was validly created in another state, Florida Courts will generally recognize the will.

If you are having problems getting a copy of a will or would like your Florida will reviewed to make sure it is valid and does what you want, you should contact a Florida Estate Planning Lawyer to discuss your situation.

If you are a married person in the State of Florida and have not created a Florida Will or Florida Revocable Trust you should fully understand what will happen to your assets when you die.

Previously in Florida, if a husband or wife passed away with only children belonging to the surviving spouse, the surviving spouse would receive the first $60,000 of the decedents probate estate, while the rest was split equally between the surviving spouse and the children or their heirs.

Governor Scott signed the Florida Law on June 21st. The new Florida Law gives everything to the surveying spouse (where one has passed away without a will and is survived only by a spouse and children of that marriage).

The reasoning for this rests behind the thought that the surviving spouse will "take care" of his or her own natural children and so there is no need to split anything beyond $60,000.

The new law does not change what happens when the decedent had children from outside the marriage. If someone with a mixed family dies without a Florida Will, 50% of the estate goes to the surviving spouse with the other 50% automatically divided among the decedent's children or a deceased child's descendants.

On a positive note, married couples typically want their surviving spouse to receive 100% of the deceased's estate. However, if you would like to have a say in how your estate is divested, some action is necessary on your part.

One major concern with this is that as we age, the old law provided a mechanism to give assets to the kids without subjecting them to claims of nursing homes and medicaid eligibility of the surviving spouse. Now if you die without a will and your surviving spouse needs nursing home coverage, it may be more difficult to qualify given that there is a $2000 cap on the amount of assets a single person can have in Florida.

To Discuss your situation or speak with someone about your options Contact A Jacksonville Estate Planning Attorney by email or call anEstate Planning Lawyer in Jacksonville at 904-685-1200 to schedule a free consultation to discuss your options in dividing your estate the way you see fit.

When a parent has died in Florida without a will, they have died intestate. Under the Florida intestate succession statutes, an adopted person is considered to be the descendant of the adopting parent and is considered the natural family of all members of the adopting parent's family. The adopted person is not a descendant of his or her natural parents, nor is he or she "kindred" of any member of the natural parent's family or any prior adoptive parent's family.

The confusion as to whom an adopted person can inherit from stems from the several scenarios in which that person may be adopted. A child may be put up for adoption after their natural parents have terminated their parental rights. A child may be adopted by his or her natural parent's spouse (who married the natural parent after the death of the other natural parent). A child may be adopted by a close relative after the death of both natural parents.

Each scenario has different implications as to how an adopted child is treated as far as his or her Florida inheritance rights. It is best to consult with a Middleburg Probate Attorney who can assist you in understanding your legal rights when your adopted or natural parent has passed away.

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.

If you are in a domestic partnership and live in a Florida home, or if you are in a same-sex relationship and are planning to buy a house with your partner, you may want to speak with a Jacksonville Estate Planning Attorney and discuss how your deed [the instrument transferring title to real property] should be titled.

Under Florida law, there are three types of ownership, joint tenants wth right of survivorship, tenants in common, and tenants by the entirety (which is solely for a husband and wife).

Tenants in common gives each individual an undivided interest in the entire property. As tenants in common, there is no right of survivorship. When one owner dies, his/her interest passes to the beneficiaries as named in his/her will or passes per the Florida Intestacy law.

In Joint tenancy with right of survivorship two or more own property together, and on the death of a joint owner, the property passes to the surviving co-owner who now owns the property, without the need of a probate administration.

Jacksonville Domestic Partners, Life Partners, or same-sex couples can title their property as joint tenants with right of survivorship, or tenants in common. Another powerful instrument , the Enhanced Life Estate Deed or "Ladybird Deed" might be an option for you as well [to be discussed in future entry].

The particular circumstances of your relationship and what you and your partner have discussed as to each partner's future ownership of the property, will help to determine the best way to title your deed. Whatever your decision is it is best to consult with an Estate Planning Attorney who is sensitive to your needs.

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.

If you have ever thought about changing or invalidating your Florida Will it is recommended that you speak with an Attorney at an Orange Park Estate Planning Firm, who is familiar with the Florida Statutes which govern the preparation and revocation of Florida Wills.

All Florida Wills are revocable until your death- as long as you are competent. A Florida Will can be revoked by writing or by an act. A Florida Will can be revoked by the preparation of a later Florida Will. A Florida Will can also be revoked by burning, tearing, defacing, or destroying the will if it is done so purposely and intentionally.

If you want to revoke a Florida Will and ensure that it is never used, it would be advisable to collect all copies and destroy them. If this is not possible, write the word REVOKED on the original Florida Will, along with the date, and your signature. You should prepare a new will before or at the same time as you revoke the old will in case you die before the new will is prepared. If a new will is not prepared, the court will consider that you died without a will and will base the distribution of your assets on the Florida intestate succession laws.

You can also change a Florida Will instead of revoking the Florida Will if your personal or financial circumstances have changed.

If someone you have named as beneficiary or personal representative (executor) of your will has died, if you want to change your charitable or other distribution preferences, speak with an Orange Park Estate Planning Attorney to amend or replace your Florida Will.

If you live in Ponte Vedra and die before you have made your Florida Will, you have died "intestate". What this means is that your intentions as to who will inherit what from you, and who will be appointed Personal Representative of your estate is now determined by the state of Florida.

If you do not seek out a Ponte Vedra Estate Planning Firm about having your will made prior to your death, you leave your family, friends and charitable organizations at a disadvantage. Any arrangement or understanding you may have had with those who were to benefit from your property and assets, will now be subject to the Florida Intestate Succession Statute. This Florida law strictly dictates who is to receive the property of the decedent (the one who recently died). Good intentions mean nothing in Florida without a valid Florida Will.

Some disadvantages of dying intestate are:

• The share each heir gets is set by law, so your assets will not be distributed based on what you think is best for each heir;
• There are no provision to give a portion of your estate to charity;
• Most states have no provisions for domestic partners or other non-family members; and
• Courts will appoint a guardian for minor children, who may be someone you would not have wanted to be in charge of your kids.

Make plans to consult with a Florida Estate Planning Attorney who can discuss additional disadvantages of dying in Florida without a valid will and the easy ways that this can be avoided.

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 aFlorida Probate, where the decedent did not have a will, Florida's intestate laws of succession define how property will be distributed between the person's family members.

If there was a surviving spouse and no lineal descendants the spouse will receive everything in the decedent's estate.

If there is no spouse but there are lineal descendants (children) then the estate is split equally between all surviving children. If a child predeceased their parent and had children of their own, that child's share will be equally divided between his or her children (the decedent's grandchildren). If the child that did not survive the parent did not have children, that child's share will go to his or her siblings equally.

If there is a surviving spouse and descendants and:

1. all of the descendants are also descendants of the surviving spouse, the surviving spouse will receive the first $60,000 plus 1/2 of the remaining estate, with the balance being shared between the lineal descendants.
2. one or more of the lineal descendants is not a lineal descendant of the surviving spouse, the surviving spouse receives 1/2 of the probate estate and the lineal descendants receive the other 1/2 of the probate estate.

If there is no surviving spouse and no lineal descendants the probate property goes to the decedent's surviving parents and if none, then to the decedent's siblings or the descendants of any deceased brothers or sisters.

There are other provisions in the Florida Probate code which provide for exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported.

If you need help with a Florida Probate and determining your rightful share of an estate in Florida you should contact an attorney familiar with Florida Probate or a Florida Estate Planning Lawyer.

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.

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

In Florida what happens to persons assets if they die without a will? Under Florida probate law, if a person dies without leaving a will the decedent's estate is dealt with under Florida's Intestate statutes. Even if a Florida resident dies in intestate, the decedent’s assets will be transferred to their family members. Only if there are no family members will the assets escheat to the state or be transferred to the state. Generally Florida's intestate statutes go to great lengths to find a relative to leave a decedent's assets to.

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.

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.

Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.

1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?

If you or a family member fees that a Florida Estate Plan will benefit you please contact a Florida Estate Planning Lawyer.

A Florida Personal Representative - The individual or individuals (or institution) named in a will or appointed by the Probate Court who is responsible for gathering a decedent's assets, paying debts, taxes, and expenses, selling assets of the estate, if necessary, and distributing the remaining property and money according to the terms of the will (or the intestate laws of the state of residence). The personal representative must preserve and protect the estate assets and unless an accounting is waived account to the estate beneficiaries for estate income and expenses. The personal representative must file a federal and state estate tax return, if required, and must also file final state and federal income tax returns for the decedent, and, if necessary, federal and state income tax returns for the estate.