Articles Posted in Probate

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 live in Ponte Vedra and die before you have made your Florida Will, you have died “intestate”. What this means is that your intentions as to who will inherit what from you, and who will be appointed Personal Representative of your estate is now determined by the state of Florida.

If you do not seek out a Ponte Vedra Estate Planning Firm about having your will made prior to your death, you leave your family, friends and charitable organizations at a disadvantage. Any arrangement or understanding you may have had with those who were to benefit from your property and assets, will now be subject to the Florida Intestate Succession Statute. This Florida law strictly dictates who is to receive the property of the decedent (the one who recently died). Good intentions mean nothing in Florida without a valid Florida Will.

Some disadvantages of dying intestate are:

A Florida Probate Attorney was suspended from practicing law by the Florida Supreme Court. The attorney was said to be causing great public harm by a pattern of “obtaining fees, controlling assets, enforcing individuals to ‘pay him’ before he would resign as trustee of several trusts”. The attorney has also been the subject of several pending disciplinary cases involving inappropriate handling of trust accounts and failing to move money from his account into a guardianship account.

The Florida Bar governs attorney behavior and law practice. An attorney has a code of ethical behavior in which he must adhere to in his representation of clients. There are specific rules which regulate trust accounts and accounting procedures, and Orange Park Probate Attorneys must act in accordance with these rules, otherwise, they are in violation of the Florida Bar.

Whatever reason has led you to retain an Orange Park or Jacksonville Florida Attorney, it is important to do your homework. One of the most reliable ways to find an attorney is through personal referral. Ask your family and friends if they know of or have used an attorney in your area. Access the internet to view a law firm’s web site and blog pages. These sites often have informative articles which will provide you with background information about your legal issue.

A Florida Personal Representative is appointed by the probate judge to settle the decedent’s (person who died) estate and distribute the property to the beneficiaries.

When an Orange Park resident dies without leaving a will (dies intestate), Florida Statutes, Section 733.301 provides for the preference in appointment of a personal representative. The order of appointment is:

• Surviving spouse;
• Person selected by a majority in interest of the heirs;
• Heir nearest in degree;

A guardian of the property of minor children may serve if qualified, or may select the personal representative.

Where a person died intestate, with no surviving spouse, leaving two minor children, a Florida court reversed the appointment of the decedent’s father as personal representative, instead of the individual chosen by the heirs (the children). The Florida court stated that there was no surviving spouse and the person selected by both heirs, acting through the guardians of their property, was authorized and qualified under Florida Law to act as the personal representative.

When a Florida Wrongful Death action is settled, the money either goes to the estate of the decedent (the person who has died) or to the decedent’s survivors. If the settlement is small, it can be handled with a summary administration. When this happens, the settlement money becomes an asset of the estate and can be subject to the claims of creditors. With small wrongful death settlements, the potential risk from creditors needs to be evaluated to see if the savings in probate fees makes it worth while to consider a summary administration. It is important for a Jacksonville beneficiary of the estate to sit down with a Jacksonville Probate Attorney who can guide you through the probate administration process.

Probate is the court supervised proceeding for distributing the estate assets of the person who died. The probate process also identifies creditors who have valid claims against the estate. If a wrongful death settlement is listed as an estate asset, then it may be susceptible to the valid claims of creditors.

If you are a Jacksonville survivor under the Florida Wrongful Death Statute, protect your settlement award by knowing what estate assets are exempt and protected from the claims of creditors. Talk with an attorney experienced in Florida Probate cases.

Wills need to be deposited with the court within 10 days of death.  Florida Statutes, Section 732.901.  A Jacksonville custodian of a will must deposit the will with the appropriate clerk of court within 10 days after receiving information that the testator (person whose will it was) is dead. If the will has not been timely deposited, any interested person may upon petition and notice compel the production of the will, and receive attorney fees, costs and damages against the delinquent custodian.

A Florida judge recently entered an order requiring a custodian of a will to produce the will. The judge then entered an award of $2500.00 in attorney’s fees against the custodian who had failed to produce the will.

The 4th district court of Florida reversed the order, stating it was error by the circuit court to enter an order requiring production of a will and assessing attorney fees against the custodian of the will, without a hearing or proof that the petition to produce the will had actually been received by the custodian of the will. As the order was entered without due process the district court set it aside and remanded the case back to the circuit court.