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 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.

You have recently lost your uncle. He did not own a Florida home or real property but had bank accounts including a money market, CD's and a checking account. The accounts were solely in the uncle's name. His wife passed away years ago and he had no children. Whether there was a Florida Will or not, a Jacksonville probate proceeding must be initiated to transfer the uncle's property (financial accounts) to the proper beneficiaries.

If there is an indication that the bank accounts are less than $75,000.00 you may elect to go forth with a summary administration. A Florida Summary Administration is a shortened probate procedure in Florida and is available if the person who passed away has been dead for more than two years or if the person's estate, (less the value of any exempt property) does not exceed $75,000.00.

Before the Jacksonville Probate Judge will issue the Order of administration providing for the distribution of property, the petitioner (person initiating the probate proceeding) must show the judge that all known creditors have been given notice and an opportunity to make a claim against the Florida estate.

If you have lost a family member and need advice as to whether a summary administration is the best way for you to proceed, speak with a Jacksonville Beach Probate Attorney who can discuss the Florida Summary Administration and other Florida Probate options.

A Summary Administration in Florida is an abbreviated Florida Probate proceeding where estates with assets of less than $75,000 or those where the decedent has been dead for more than 2 years can simplify the probate process. We often find that the families of people who die with a home or other property do not properly administer their loved one's estate at the time of death and must go back to clear up the title so that the property can be sold or transferred properly at some later date.

When a piece of real property is involved in the estate, we have to ask the court to determine if the property is protected as a Florida Homestead or is subject to the claims of creditors. Once this determination is made the property can be transferred properly.

If you need help clearing up the title of a home or property located in Florida that belonged to a person who died, we can help with a Florida Summary Administration, please Contact a Florida Probate Lawyer for more information on this process.

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.

There are five estate planning options available to parents concerning their special needs child:

(1) Distributing assets outright to the special needs child (not recommended since the assets may disqualify the child from receiving means-tested government benefits);

(2) Disinheriting the special needs child (generally not recommended since the child will have no “safety net” if government benefits are subsequently reduced or eliminated);

(3) Leaving property to another family member with the “understanding” that the property will be used for the benefit of the special needs child (generally not recommended since the arrangement is not legally enforceable and the sibling’s creditors (including a potential ex-spouse) may be able to seize the assets);

(4) Establishing a third-party discretionary support trust for the special needs child (generally not recommended since the trust will, in many states, disqualify the child from receiving means-tested government benefits); and

(5) Establishing a third-party created and funded SNT for the special needs child (highly recommended since the trust will not disqualify the child from receiving means-tested government benefits).

If an irrevocable inter-vivos third-party created and funded SNT is established by the parents or grandparents, the parents’ (or grandparents’) wills should specify the source for the payment of any death taxes attributable to the trust if any part of the third-party created and funded SNT is included in the parents’ (or grandparents’) gross estate. These trusts should not include a Medicaid Benefits payback clause. If its not drafted properly you can create a requirement to reimburse Medicaid.

In addition to the usual hurdles that parents face when preparing an estate plan (e.g., who should be the guardian, trustee, executor, etc.), the parents of a special needs child are faced with five unique estate planning challenges:

(1) How to provide for all of their loved ones without jeopardizing the special needs child’s current (or potential) eligibility for means-tested government benefits such as SSI and Medicaid;

(2) How to design an estate plan that supplements the special needs child’s means- tested government benefits and enhances the quality of the special needs child’s life;

(3) How to treat the other children equitably while adequately providing for the special needs child;

(4) How to make sure there are sufficient funds available at a parent’s death to care for the special needs child; and

(5) How to provide for the proper supervision, management, and distribution of an inheritance for the special needs child through a third-party created and funded SNT

Of these five unique estate planning challenges, above items 4 (sufficient funds) and 5 (proper supervision and management of the funds) typically prove to be the most difficult to implement. This is especially true: (i) if the majority of the parents’ estate is composed of retirement benefits (see, Section 9, below, concerning retirement benefits), (ii) if the proposed trustee is inexperienced in administering SNTs, or (iii) if there is an experienced trustee available that is knowledgeable about special needs (typically a corporate or professional trustee), its minimum annual fee is too high relative to the proposed size of the SNT.

When creating an Florida Estate Plan your lawyer should ask about special needs.

Short Answer: A Summary Administration probate usually takes just over 3 months but can take 6 or more depending on the circumstances.

Long Answer: It depends on the facts and circumstances of each situation. In some areas of Florida the Judges require or allow for differing procedures this causes some probate administrations to take longer than others.

In Florida, the personal representative may need to sell real estate prior to settling the estate. As you can imagine the market conditions can determine how long it will take to sell property. I have been involved in some Jacksonville Probate Litigation where the creditors dispute every claim and as a result lawsuits are filed to resolve those claims. This procedure or settling a disputed claim in a Florida probate can extend the time to compete the probate.

Other Jacksonville cases have involved a disputed prenuptial agreement or Florida WIll. Again when there is extended litigation the process will take longer to resolve., or to resolve a disputed claim filed by a creditor, or a lawsuit filed to challenge the validity of the will.

Even the simplest of estates must be open for at least the three-month creditor claim period. If there are no assets that are subject to claims of creditors in some counties the Judges like to give notice to creditors and an opportunity to dispute homestead status to preserve the creditor's due process rights. With these issues in mind, it is reasonable to expect that a simple estate will take at least three months and typically five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the estate are first due within 12 months after the Court issues Letters of Administration to the personal representative. This period can be extended if necessary and is often extended in cases involving Florida personal Injury Claims.

If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death, however, the time for filing the return can be extended for another six months. Remember that the Personal Representative is personally responsible for the estate taxes if they are unpaid. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.

If you need help from a Florida probate lawyer or are looking to file a claim a Florida Probate case and would like a Jacksonville Probate Attorney to review your claim or the probate administration Contact a Florida Probate 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.

All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.

If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.

Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning 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.

Last week I had a client call me about a Probate problem? It turned out that this client had used a Do it yourself Will Program that was online ( LEGALZOOM). Her husband executed his will, but she did not. Then her husband died. The problem is that because her husband had a bank account in his name and did not have a Payable on Death designation, the bank account needed to go through probate.

This could have happened if a lawyer had prepared the will, but the lawyer would have probably inquired into the title of the assets in his possession. This little mistake cost $1500 in probate fees.

The odd thing is that she doesnt want her will or assets reviewed by an attorney because it will cost around $100. Some people never learn.

The moral of the story: Online wills are only forms. Even if they imply that a lawyer created them, a lawyer is not looking at your documents or your assets when you make decisions.
This client could have spent $100 more than the online cost and had an attorney prepare, and review their documents for mistakes like the one she missed.

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

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, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

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.

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.