Florida Estate Planning Lawyer Blog

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 stirpes.

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.

Fiduciary: This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly.

Administration - Probate or Trust: The process of handling the affairs of a deceased person's estate or a trust. Florida Probate and Trust Administration

Ancillary Administration: probate proceedings in another state. This is usually necessary when the deceased person owned real estate in their sole name in a state other than his or her home state. It could be avoided by putting the property into a trust or passing the property so the beneficiary (beneficiaries have) has a remainder interest in which the property will pass to them by operation of law upon the death of the decedent. With limited exceptions such as requiring documents from the decedents probate in their home state ancillary probate in Florida is generally treated according to the same rules as if the decedent were domiciled in Florida.

Formal Administration: 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.

Summary Administration: an abbreviated proceeding before a probate judge either with a will or intestacy which the value of the entire estate subject to administration in this Florida, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years is governed by chapter 735 of Florida statutes.