Florida Probate is a legal process through which your Florida Probate Lawyer / Attorney files documents so that the following can happen
(b) a personal representative is appointed to:
In Florida wills, Florida Trusts, and Florida Estate Planning it is important to deal with Pretermitted children. Make sure your Florida Estate Planning Attorney and the estate planning documents deal with them or you can have unexpected results.
A Pretermitted Child A child by birth or adoption who became a child after the execution of the current estate planning and was not mentioned in the will or trust. If a person has a child or children after executing their will and do not prepare a codicil after or name the child in the document the child will be entitled to receive the share they would be allowed if the estate were to pass by Florida intestacy laws.
A Florida Power of Appointment is a right given to another in a written instrument, such as a will or trust that allows the other to decide how to distribute your property. The power of appointment Can be a general power of appointment if it places no restrictions on who the distributes may be, or Limited or Special Power of appointment if it limits the eventual distribution.
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.
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.
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.
A Florida Holographic Will: A will written entirely in the testator’s own handwriting. NOTE Holographic wills are not valid in Florida unless they comply with the statute of wills and Florida statute 732.502, even if they were valid in another state when created.
All other wills are valid in Florida if they were valid in the other state at the time they were created.
Florida statute 732.502 requires that the:
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.
In Florida Estate Planning, Florida Guardianship Proceedings, and Florida Probate cases it is often necessary to setup a full or plenary guardianship.
Guardian: an adult appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or legally incapacitated person’s personal care and nurturing.
A parent is the natural guardian of their minor child. If a child receives over $15,000 from a probate or settlement that requires court approval, a parent will need to create a Florida Guardianship over the Property of the minor child.
