Florida Estate Planning Lawyer Blog

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how creditors are dealt with in a Florida probate case.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the estate until the claim has been satisfied or otherwise disposed of.

It is important to give creditors the proper notice in a Florida Probate Case. If you have questions about creditors and a Florida Probate proceeding please contact a Florida Probate Lawyer.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how fees are determined in a Florida probate case.

The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

The fee for the personal representative is usually determined in one of five ways:

(1) as set forth in the will;
(2) as set forth in a contract between the personal representative and the decedent;
(3) as agreed among the personal representative and the persons who bear the impact of the fee;
(4) as the amount presumed to be reasonable as calculated under Florida law if the amount is not objected to; or
(5) as determined by the judge, applying Florida law.

Likewise, the fee for the attorney for the personal representative is usually determined

(1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
(2) as the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to, or
(3) as determined by the judge, applying Florida law.

That being said each case is different and the fees depend on the type of assets, complexity of the case, and the conflict between the beneficiaries or heirs of the estate. To find out what a reasonable fee for a 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.

In Florida as with many other states, current child support payments and past due child support payments are an asset of the estate of the decedent. When there is back child support due and the primary caretaker passes away, the personal representative or executor of the estate may take action to collect the payments from the other parent.

Even though it is the estate who is going after the payments, these payments are for the benefit of the child and not available to creditors or other beneficiaries.

If you are trying to collect back child support from a parent and there is an estate involved, you should discuss this with a Jacksonville Estate Planning Attorney who works with a Jacksonville Family Attorney.

A Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.

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?

Recently I saw a Florida Probate case, where a mistake was made in a will that changed a homestead to non-homestead property. Luckily there were no creditors, but in the even that there were creditors, the home could have been lost because of this mistake.

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.

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.

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Continue reading "Florida Enhanced Life Estate Deed" »

In Florida probate, proceeds from a wrongful death action are not subject to the claims on creditors including unpaid child support. In Re: The estate of Johnny Glenn Barton (631 So.2d 315) the Second District court of appeals reasoned that since the recovery for wrongful death has nothing to do with the injuries sustained by the decedent, but is due to the benefit that the beneficiaries would have received if the decedent had not been killed.

A wrongful death action does not include an award for medical expenses and thus the proceeds of such settlement do not include money for that. A Florida Wrongful death action is to compensate the survivor for their own losses, separate from their departed loved-one.

The appeals court held that it was wrong for back child support to be paid from the proceeds from the wrongful death action. If you have a wrongful death action it is important to use a Florida Probate Attorney who is familiar with Florida Probate.

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.

4. What are the general myths about Florida revocable trusts?

"Revocable Trusts Save Taxes."

Revocable trusts do not save income taxes or estate taxes. Typically during the life of the grantor the tax id of the grantor is used and any tax flows through to the grantor at his rates. Following the death of the grantor if the trust continues and is not immediately distributed outright to the beneficiaries it must then get a tax identification number and the retained income is taxed to the trust which has a more compressed rate schedule often resulting in a higher tax rate then if the individual beneficiaries were paying. This is not a potential problem until after the passing of the grantor though and then with proper planning the income can be distributed to the beneficiaries and there will be no adverse tax issues.

"Revocable Trusts Protect Assets from Creditors." - Myth

This is generally not correct as it relates to the grantor themself. Creditors may reach the assets of the grantor. Some asset protection could be achieved for other beneficiaries though. A Florida trust attorney could further help explain the details of how a trust could help with asset protection for other beneficiaries.

The primary benefit of creating a revocable trust is that it allows for continued management and preservation of your assets, should you become disabled. It can also help avoid probate and set forth all of the dispositive provisions of your estate plan including delayed distributions to beneficiaries if desired and professional management of such assets.

In Florida probate is a court-supervised process that is designed to determine how to transfer the assets of a decedent upon their death. Property subject to Florida probate administration is that owned by a person at death, which does not pass to others by operation of law, contract or designation (such as life insurance policies, retirement accounts and transfer on death bank or brokerage accounts)

Probate administration transfers legal title of property from the estate of the decedent (the person who has died) to his or her proper beneficiaries as determined by a will, if no will by the state laws of intestacy and if there was a surviving spouse they may receive some statutory rights not provided for in the will such as homestead or an elective share.

The term probate means to prove. In the probate administration process the petitioner / personal representative seeks to prove the existence of a valid will or to determine and prove who the heirs are if there is no Will so the property passes by intestate succession.

Continue reading "Florida Probate Process - " »

Florida Estate Planning:

The process of preparing and planning for a persons financial, health care and personal affairs. It includes documents to designate an agent in the event of a future disability such as a Living Willl or health care surrogate to assist with health care matters if one is unable to do so, a power of attorney to help with financial matters, and wills and trusts to pass financial property to family, friends and possibly other organizations. Estate Planning can ensure that a person is able to pass their property exactly as they desire instead of how Florida law or their home state would dictate it pass and then if trusts are prepared they can direct how the property will be handled long after the grantor is dead. Estate Planning is critical for all people and not merely those with a large estate. It determines who the guardian of minor children would be, who the personal representative/trustee (if there was also a trust) would be that handles the affairs and a guardianship from having to be imposed where the court would take control. Florida probate could be avoided as well through the use of trusts and or proper designations for the way that property is held saving time and money. Also if it is a large estate money could be saved that would otherwise have to be paid for estate taxes. Once all the persons assets exceed a certain exemption amount the estate is taxed at over 40%. With proper planning substantial amounts of money can be saved.

Probate Claim:

Claims are debts of the estate. There are two types of creditors in Florida a known or reasonably ascertainable creditor and all others. For claims the Personal Representative is aware of or should be aware of a creditor in Florida has the greater of 30 days from being served or 3 months from publication to file a claim in the probate court or the claim will likely no longer be valid. For all other creditors they are limited to 3 months from publication. If there is not enough money in an estate to pay all the claims then Florida statute 733.707 would determine the order of payment.