Florida Estate Planning Lawyer 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.

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.

Florida probate cases often involve situations where the decedent has step-siblings or half blood siblings.

Under Florida's intestate statutes a step brother or sister would not receive any share of the decedent's estate, but a half blood (one related by one parent) would receive 1/2 as much as a child that was related by both parents of the decedent.

In the case were there are only half blood siblings, each of them receives a full share.

An example might be where your mother and father had 2 children together. Your mother and father each had a child from another relationship. If you died, your sibling from both parents would receive 1 share of your estate and your other two siblings (1 from your father and one from your mother) would receive 1/2 share each. This would mean that your full brother would receive 1/2 of your estate and each half-blood sibling would receive 1/4.

This is assuming that you had no descendants and your parents had predeceased you. If you have half blood and step siblings and would like to know what your rights to inheritance are Contact a Jacksonville Florida Estate Planning Lawyer

When someone dies without a Florida Will Their property is distributed under the Florida Statutes. Chapter 732 define the order of succession to a decedent's property.

732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

If you think you may be entitled to a persons property, Contact a Florida Estate Planning Lawyer to help you determine if you could benefit from a Florida Probate

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?

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?

As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

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.

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.