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.

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.

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 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).

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.

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.

Being named the "Personal Representative" or "Executor" of someone's estate under a Florida Will should be a decision made after consider several factors. Although many people may be tempted to name their spouse or one of their children as personal representative, there are certain qualities one should look in a candidate before deciding who to name. The following is a list of traits you should look for when deciding who should serve as your executor:

1. Loyalty - the executor should be loyal to your beneficiaries and loyal to your final wishes. 2. Fair - the executor should treat multiple beneficiaries fairly and protect all of their interests equally in the probate process. 3. Trustworthy - the executor will be trusted with large sums money, real property, and personal property. Your executor is capable of investing and selling all of these assets and will know all of your financial secrets. 4. Organized - the personal representative you choose will be responsible for performing several comprehensive tasks with deadlines that must be met. Good organizations skills make it quick and easy to locate information. 5. Financial Background - the personal representative should understand finances because during the probate process he must pay debts and collect revenues for the estate. Also, financial minded people can deal with investment accounts so they won't suffer or drop in value before they can be distributed to your heirs. 6. Tough Minded - the executor should be able to deal with greedy beneficiaries who want their inheritance right way and any unforeseen circumstances that could arise.

With the proper personal representative, you can ensure that your estate is safe and distributed according to your wishes. For assistance in choosing a Personal Representative, contact a Jacksonville Estate Planning Lawyer today.

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.

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 the handbook, you will:

•Learn about four types of Florida Probate.
•Learn about what is involved in opening a Florida Probate.
•Learn about the responsibilities of being a Personal Representative or administering a Florida Probate.
•Learn why a lawyer is required in most Florida Probates.
•Learn the steps involved in a Florida Probate.
•What type of Florida Probate do I need?
•Am I responsible for the bills of the Estate?
•Can I object to claims of creditors?
•Do I need an attorney to help me?
•How can I get a copy of a Florida Will?
•What are the penalties for not filing the Will within 10 days of death?
•If there was a trust, what happens to it, whom must I notify, and what needs to be filed with the court?

If you have questions about Florida Probate, Contact a Florida Probate lawyer

In Florida who can be a personal representative, or executor, of an estate?

1. The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
2. An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative.
3. A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

The preference of who will be appointed as the Personal representative is determined first by who is nominated in a will left by the decedent and if there is not a valid will appointing someone who wishes to serve then the surviving spouse has preference with the second preference going to the person selected by a majority in interest of the heirs.

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.

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.

In Florida the personal representative is the person named in a will collect and distributed the assets of a person after death. In a Florida Probate this typically involves taking care of and real or personal property, paying legitimate outstanding bills and filing and paying taxes. Once the debts are paid, the remaining assets are transferred to their new rightful owners. The Personal Representative or Executor can request payment from the estate for the job that they are doing. Florida state law and what is contained in the decedent’s will regulate the exact amount a PR is paid. Often in simple estates and where the PR is a close family relative the PR will not charge a fee for administering a Florida Estate.

If you have questions about a Florida Probate or your job as a Personal Representative in Florida, Contact a Florida Estate Planning Lawyer

When a decedent’s assets go into probate in Florida the Florida Probate Case will be in the county court where the decedent maintained his or her domicile.

Pursuant to Florida probate law a judge will normally decide and rule on the validity of a will. The judge will also rule on who the heirs are should there be a question or dispute as to the validity of a decedent’s heirs.

If the decedent appointed a personal representative to administer the Florida will, the judge will determine if the representative is qualified administer the estate. If there are no objections and the judge determines that the representative qualified, the judge will issue letters of administration. These letters of administration allow the executor or personal representative to administer the will. Any issues or conflicts that arise during the representative’s administration will be ruled on by the circuit court judge.