Florida Estate Planning Lawyer Blog

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?

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.

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.

Although the state of Florida accepts wills created in other states when they were valid in the state where created, not all of the will may be valid. Recently, I ran across a will that named an accountant of the decedent as their Personal Representative. Several months later the decedent moved to Florida and eventually died without updating the will.

The problem started with the fact that the accountant was not related or married to someone who was related to the decedent. This is a disqualification of a Personal Representative in Florida. The result was that the decedent did not get to choose their Personal Representative.

If you have a will that was prepared in another state and want a Florida lawyer to review it for compliance with Florida law so that your desires are carried out upon your death, Contact a Florida Estate Planning Lawyer to review your Estate Planning Documents.

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent (Florida Probate Code Section 733.803 , Florida Statutes (2002))

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.

If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent’s son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other "exceptional circumstances," the appellate court reversed the trial court.

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.
The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.

On appeal, the Second DCA reversed, finding that the initial petition for administration and subsequent documents filed in the probate proceeding, while defective as to form, sufficiently stated the character and extent of the claim and were substantially sufficient to place interested persons on notice of the claim.

A paycheck of a decedent belongs to the Decedents estate. Florida Employers should not cancel nor refuse to issue paychecks for employees who die. Florida Employers should follow their normal procedures. If no one checks on the status of the paycheck, it would be a good idea to send notice to their address that the check is being held for their estate. This gets more complicated with direct deposit where the funds could go to the wrong person. The decedent could have a joint account with someone who was not the same person who would take under the will.

If you have questions about receiving or what to do with the earned but unpaid income of a decedent in Florida you should contact a Florida Estate Planning Lawyer who is familiar with Florida Business Law.

Fox Business has an article on A New and Smart Way to Leave Your IRA to a Minor where they discuss the importance of reviewing beneficiaries on all acounts including insurance, annuities, and retirement plans.

They discuss leaving a percentage of the account rather than a dollar amount as this can cause complications if there are not enough assets in the account.

"If you don’t name someone in your will to act as “financial guardian” for your granddaughter, then your IRA will end up in probate court with a judge making the decision. And it might not be the person you’d want. (Your son-in-law, for instance.)"

Not only that, once the probate court is involved, it can get very expensive, depending upon the laws of the state where the minor lives. “The court gets joint jurisdiction,” says Goldberg. It can require the guardian to post bond and prepare annual reports on how the money was spent. You may need pre-approval each time you want to take a withdrawal. The court could require that the money be taken out as a lump sum, negating the benefits of “stretching” withdrawals over your granddaughter’s life expectancy.

To avoid the jurisdiction of the probate court, you can leave your IRA to a trust instead of directly to your granddaughter. As the beneficiary of the trust, she would still receive all of the benefit of your IRA. You get to appoint a trustee- which can’t easily be changed by a court- and this individual would take the annual required distributions from your IRA. The money goes into the trust and, based on the conditions you set, it can either be paid out to cover some of your granddaughter’s living expenses or accumulated to pay for college.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the distributions of a persons estate when is no will in a Florida probate case.
Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

For an evaluation of a Florida Probate Case please contact a Florida probate Lawyer.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the personal representative and their role in a Florida probate case.

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:

• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.

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?

In Florida, the following classes of people are not qualified to serve as a personal representative of an estate:

(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.

If you need help with a Jacksonville Probate Case or Florida Probate Case Please contact a Florida Probate Lawyer or Attorney.

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida's Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally seperated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida's Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

The Florida Appeals Court upheld the statute and found that the statute was rational related to the purpose. The Florida Probate Litigation blog has an excellent analysis of the case In RE Estate of Magee Download file.

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.

One problem I have seen in Florida probate cases, and Florida Estate Planning was recently written about by a Massachusetts Estate Planning Lawyer, Leanna Hamill who Practices in Estate Planning and Elder Law. This article was also covered by the Elder Law Professors Blog

In her review of the Walls Street Journal article, Paperless World Can Leave Heirs in the Dark, she states that the article outlines the dangers of keeping your records on your computer.

One of the main problems is that you may not have paper copies, for your Personal Representative to review. Without this information it may be difficult or impossible to compete an accurate inventory during the probate or administration of the decedents estate.

I have previously touched on this in a several articles about Florida Estate Planning and Digital Assets. Those articles cover some of the actual problems and ways in which various online services deal with death, and some of the problems that can result including who has a right if any to access the decedent's information which is stored online.

If you use a computer, you need to consider having a Florida Estate Plan that deals with Digital Assets, paperless transactions, and details your assets for those who have to administrate your estate.

When you die, someone has to know hot to determine or what the details of your financial life are

It is important to make a comprehensive list of assets, liabilities, life insurance policies, power of attorney, Florida will, credit cards, details of bank accounts and all other important financial information.

The problem is that once you pass away, an executor or personal representative has to go through all of your document to figure out where assets may be located.

Recently a range of self-help products have emerged. The paper, and computer based products are available in many office supply stores. Many people who have a Florida Will or other Florida Estate Planning Documents, do not have a system for keeping the other information organized so that after passing, the Florida Probate process can be simplified.

Think about someone unfamiliar with your filing system trying to figure out where you have banks, stocks, Cd's, private investments, loans, debts, and everything else you keep in your mind but not on paper. Often the lack of an organized system increases the cost of the Fees associated with using a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer, should be able to give you advice on what you need to make a list to simplify the Florida Probate process.

With Florida Estate Planning it is important to consider the effects of a gun on the probate process.
Neil E. Hendershot a Professor at Widener University School of Law in Harrisburg and author or PA Elder, Estate & Fiduciary Law Blog, had a Student submit an article regarding the possession and use by elderly persons of firearms. The article has a great title "I Bequeath my machine gun to . . ."

After reading this article, it is even more apparent that one who owns Class 3 Weapons, needs to be conscious of the effect of their demise on their Personal Representative and/or heirs.

Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm.

No matter what state you are in, if you or someone you know has a Machine Gun, or other weapon regulated by the National Firearms Act (NFA), they should speak to an Estate Planning Attorney or Florida Probate Attorney who is familiar with the Act to protect their estate, Personal Representatives, Trustees, and Beneficiaries from the penalties associates with the wrongful possession or transfer of a weapon in violation of the NFA.

A Florida NFA (Gun / Firearms) Revocable Trust may be the solution for you.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post: One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *

David M. Goldman, Florida Gun Trusts or National Firearms Trust , Florida Estate Planning Lawyer Blog, July 30, 2007, National Firearms Gun Trust: * * *

The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.

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.

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.

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.

Legally Incapacitated Person: A person who has been determined by a court as not capable of handling his or her personal and financial affairs.

A Florida Durable Power of Attorney, Florida Trust, Florida Guardianship, Florida Designation of Health Care Surrogate all deal with Legally Incapacitated persons.

One may not be the Personal Representative, Agent, or Trustee if they are Legally Incapacitated.

In Florida Probate cases the personal representative may still have to pay past due taxes on Intangible Personal Property:

The value of such property is not derived from the property itself but what it represents. For example types of this property include cash, stock, bonds, mutual funds, and bank accounts. The paper themself has virtually no value but the promise to pay or designation of a certain value by the company, government or stock market provides the value of the property. Florida has an intangible property tax on intangible property that a Florida resident owns as of January 1 above a specified amount. An intangibles trust can be prepared to avoid this tax.

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.

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.

Exempt property:

Florida law (Florida Statute 732.402) provides the right of a surviving spouse or children to receive tangible personal property such as furniture and furnishings within the homestead property up to $10,000 as well as the automobiles regularly used by the decedent if they are not devised to someone else. These properties are not subject to any claims except those with perfected security interests on them. Those entitled to such designation may be required to file the probate forms to declare such property as exempt within 4 months of publishing notice of administration of the probate administration. A surviving spouse and/or children are also entitled to a designation of homestead property that the property is exempt from creditors.

A new problem has begun to surface in Florida Estate Planning. What happens if you use email, or other online services? Will your loved ones be able to act upon your behalf if you are incapacitated or unable to act on your own?

With the rising use of the internet, it doesnt matter if you are in Jacksonville Florida or another city.How can you give your heirs access to information that may be stored online but secured by a password, but without the risk of unauthorized access.

If you put your passwords in your Florida will, they could change, or people who should not have access to them might gain access. Likewise biometrics (fingerprint or retinal scans) could also pose problems if there is not a password in addition to the biometrics.

The best solution seems to deal with a password vault where there is a master password. This way if your passwords change, the person who has access to the master password would always have the current password.

The master password could be on a document that is referenced within the will or other estate planning documents.

With the increase in electronic communications it’s important to choose a Florida Estate Planning Attorney who is familiar with the technology and how to deal with these recent problems in estate planning.

Another solution is to create a Digital Asset Revocable Trust. This trust can be the owner of all of your digital assets or the assets you wish others to have access to upon a disabling event or your death. Since most of these digital assets are licenses, the trust will survive your death and others will be able to access the information. You still need to plan on how to transfer the information or knowledge to the successor trustee or beneficiary.

With a Florida Wills you can appoint guardians for your children and arrange to manage their property for them until they're legal adults. Making a will is a critical first step in your plan.

But in Florida a will must go through the probate process, a lengthy and expensive court procedure in which a judge determines that your will is valid and supervises the distribution of your property. In most Florida counties including Duval, Clay, and St. Johns it can take 6 to 18 months and cost up to 3% of your non exempt portion of your estate. There can be additional fees for dealing with non-probate assets (that includes your Florida Homestead when you die, even if the bank really owns it).

If you have a house worth $300,000 and $200,000 worth of other assets, probate costs could be close to $7,000 and could easily be even higher. An estate of 500,000 could be looking at fees around $15,000. You can avoid probate costs by establishing a Florida Living Trust, Make sure you use a Florida living trust attorney to ensure that you comply Florida laws and regulations.

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.

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