Through probate, your estates can be transferred legally to your dependents once you die. Probate is a legal proceeding in Florida that governs how the assets of a deceased person are handled. Writing your Last Will remains a critical part of estate planning because it ensures the smooth running of the probate process. The probate court identifies and gathers the deceased's assets and oversees the settlement of debts and distribution of assets to the beneficiaries. Note that all proceedings should occur according to the "will" of the deceased person—decedent. If you need help with probate and estate planning, we invite you to turn to Arnold Law. We can lend a hand with preparing your last Will, generally ensuring the fulfillment of your wishes after you die.
The probate process in Florida highly depends on the facts of a case. However, you can expect the probate court to oversee each step of the way until a decedent's assets are distributed to their beneficiaries or heirs. Because of the complex nature of the process, it will be of paramount importance to seek legal counsel from a skilled attorney.
Probate Defined
Probate is a process supervised by the court that identifies, gathers, and distributes a decedent's assets to their beneficiaries. This process also ensures the settlement of all a decedent's debts. It is also vital to note that a decedent's assets must settle certain costs, including court proceedings and funeral expenses. Even though the probate process is intricate, rules govern the proceedings and generally make each step straightforward. You can find Florida's Probate Codes in Chapters 732—735.
Under Florida laws, there are four types of probate proceedings. Each alternative is ideal for different circumstances:
Formal Administration
One of the most common types of probate proceedings is formal administration. It clears the titles to the assets of the deceased, irrespective of their value. By far, this is the ideal type of probate for the majority of estates.
Summary Administration
Summary administration is considered a shortened type of probate. This option only applies if the value of a decedent's assets minus exempt property doesn't surpass $75,000.00 or the decedent in question has been deceased for over two years.
Ancillary Administration
If a decedent did not reside in Florida, the best probate proceeding option is ancillary administration. This alternative is not so different from formal administration, the only difference being that it can save time and cost in certain situations.
Disposition without Administration
If there is no form of administration, a court can dispose of a deceased person's property through disposition without administration proceedings. Note that this option is only made available during rare circumstances.
Probate Assets Defined
Probate assets are the properties subject to probate administration. These can be assets under the sole name of a deceased loved one. They could also be co-owned properties between a decedent and another person or people where there was no set provision defining succession at death. Some of the common probate assets include:
Bank or Investment Accounts
If the bank or investment account is in a decedent's name, the court will consider it a probate asset. However, if the account in question was owned by a decedent but payable or transferable to another person upon their death, it cannot be considered a probate asset. Likewise, the account is not a probate asset if it was co-owned with other parties and the decedent placed rights of survivorship.
Life Insurance Policy
Again, life insurance policies, individual retirement accounts, or annuity contracts payable to the estate upon the decedent's death are considered probate assets. However, these properties may not be probate assets if they are payable to a beneficiary.
Real Estate Property
If a real estate property is not a homestead property and is titled in a decedent's sole name, it is a probate asset. It is also a probate asset if it is titled in a decedent's name and someone else as a joint tenant. Again, the real estate property may not be deemed a probate asset if it is in the name of a decedent and other joint tenants but with stipulated rights of survivorship. Likewise, if a decedent has their spouse as a tenant in the title, the property is not considered a probate asset because it automatically goes to the surviving spouse.
Is The Probate Process Crucial?
Probate is a necessary process that ensures the transfer of ownership of a decedent's probate properties to their beneficiaries. If there is a valid will in place, the probate court will transfer the ownership of probate assets according to the stipulations of the last Will.
It is imperative to note that the probate process is still necessary even if a decedent had no last will. In this case, according to Florida laws, the probate process will transfer the ownership of a decedent's probate properties. Note it is possible to transfer ownership of certain assets without undergoing the probate process. If you are unsure about the steps, a skilled probate attorney can provide the much-needed guidance.
Another critical reason the probate process may be crucial is that it can help bring a decedent's financial affairs to a close. Through the administration of estates, a decedent's creditors are paid. This ensures the deceased is debt-free even after their demise.
Last Will and Testament Defined
There are numerous crucial estate planning documents in Florida. However, the most common one is the last Will. Upon the death of an estate owner, the testament is used to pass down money and property to their loved ones. Writing a will before your demise ensures your heirs and spouse receive your assets according to your wishes.
Is A Last Will And Testament Necessary?
Having a last will is necessary if you want to name who receives your probate assets. In your Will, Florida laws allow you to designate an executor (personal representative) responsible for administering your probate assets. It remains imperative to have a last will if you:
- Are married or have heirs (children or grandchildren)
- Have gone through a divorce and have not modified your Will since your breakup
- Are a real estate owner
- Own money, precious family heirlooms, or pieces of property you want your children or grandchildren to inherit
Having a last will is beneficial in many ways. One of the main perks you will enjoy is a means of passing on your legacy to the people you love upon your death. Here are other key benefits of having a last will:
Give Inheritance to Your Loved Ones
If you have money or property (bequests), your Last Will ensures that your loved ones (beneficiaries) inherit it according to your wishes. Typically, your loved ones will still inherit your property upon your death even if you don't have a will. However, your Will ensures that everyone receives the precise gifts you want to give them. This can go a long way in preventing confusion and unwarranted family squabbles once you pass on.
Name A Guardian for Your Kids Under 18 Years
If your children are not of legal age, they cannot inherit your money or property until they hit 18 years. As such, your Will can designate the task of managing the assets you leave for your kids to a person you trust until your heirs are of age. The same person can also bear the responsibility of raising your kids in a good and loving home.
A key benefit of having a will is that you name guardians for your children. This will prevent the risk of having them raised by people whose motives or values you don't trust.
Appoint a Personal Representative
A personal representative should be someone you trust to carry out your wishes. In your Will, you can name your personal representative whom you are sure will have your estate probated and your assets distributed to your beneficiaries without defying your wishes. A trustworthy personal representative will also ensure that your creditors receive their dues upon your demise.
Understanding Who Is a Personal Representative and What They Do
A personal representative is a person or people you appoint in your last Will to administer your estate once you die. If you die without a Will, the court will appoint a personal representative for you to take charge of the administration of your probate estate. Note that a personal representative can be a person, a bank, or a Trust company. Irrespective of whether you appoint a personal representative or one is appointed for you, they must adhere to Florida laws when administering your probate estate.
Unfortunately, not everyone qualifies as a personal representative. To hold this position, one must be a close relative to the decedent, such as their spouse, child, parent, or sibling. Other trusted individuals can also serve as personal representatives, although in this case, they must reside in Florida. Note that persons under 18 years, convicted felons, or those with mental or physical limitations to carry out the duties of a personal representative also don't qualify for the position.
Here are some of the crucial duties of a personal representative:
- Identify, collect, evaluate and protect the probate properties titled under the name of a decedent.
- Oversee the publishing of a "Notice to Creditors" upon your demise to ensure potential claimants file their claims as required by Florida laws and receive payment for your debts
- Conduct searches if necessary to locate potential creditors and inform them to file their claims
- Object malicious claims and settle the valid ones
- File a decedent's tax returns and pay any pending taxes
- Seek professional assistance by enlisting experts who can help in administering a probate estate. This could be investment advisors, probate lawyers, property appraisers, and certified public accountants.
- Settle all expenses allied with the administration of the probate estate
- Handle the distribution of probate assets and statutory amounts to a decedent's beneficiaries
- Close a probate estate
It remains imperative to understand that a personal representative has a duty to a decedent's beneficiaries under the law. As such, mismanagement of the probate estate can have devastating legal repercussions.
When Does The Court Appoint A Personal Representative?
As aforementioned, you can name your representative in your last Will. In this case, the court will appoint the individual or institution you inscribe in your Will to serve as your representative. Note that before the formal appointment, the court must affirm that the person or institution named in the Will is legally qualified to act as your representative.
If you didn't have a last will, the court is tasked with appointing one for you. The first person with the right to serve in the position is your surviving spouse. If your spouse turns down the position or you were never married, your dependents can choose whom they want as the personal representative. The individual or institution that gathers the majority votes may serve as the personal representative.
In some instances, a decedent's dependents cannot agree on who should hold the personal representative position. In this case, a judge may request a court hearing and step in to appoint an individual or institution that can serve everyone's best interests.
Does A Personal Representative Need A Lawyer?
As aforementioned, the appointed personal representative has a legal duty to a decedent's beneficiaries. This makes it imperative to enlist a skilled attorney to help with the administration of a decedent's probate estate. Even in simple probate estate administration, numerous legal issues may arise, leaving the personal representative in hot soup.
The work of an attorney is to provide all the legal guidance a personal representative may need. The expert will inform the representative about their rights and duties as stipulated in Florida laws. Moreover, the lawyer will represent the personal representative during probate estate proceedings. Note that the attorney will, in this case, represent the personal representative and not other people named as a probate estate's beneficiaries.
The Possible Turn of Events If You Die Without a Last Will and Testament in Florida
We cannot emphasize enough the importance of estate planning. While your death may be the last thing in your mind, it is an inevitable part of life. The thought of leaving the people you love behind is always disturbing, irrespective of your social status. A compelling reason to talk to your attorney about your Last Will is that having it in place will give you incredible peace of mind.
The Court Will Divide Your Probate Assets
In Florida, intestates are the estates of residents who pass on without a last will. The court has jurisdiction over these types of assets, and it decides who gets what based on Florida's intestacy laws. If the law determines that a specific relative should have a share of your property, the court is obligated to ensure they receive their due, even if this was against your wish.
With the last Will in place, the court has to do as prescribed in the document. The best part is that you can choose a personal representative of your choice to ensure satisfactory execution of your Will. Note that if you don't have a last will, the court may appoint a personal representative that you don't trust.
The Court Will Choose A Guardian for Your Kids Under 18 Years
Moreover, the court has to decide who will become the guardian of your children who are below 18 years. The worst that could happen is that a judge may again appoint someone that you don't trust. Unfortunately, this could jeopardize the future and welfare of your children.
Family Infighting May Arise
Irrespective of the value of the probate property you own, the risk of family infighting increases drastically when a decedent lacks a last will and testament. For instance, the court may decide that all your money and property should go to your heirs. This means that other family members who feel entitled to inheritance may not sit well with this decision.
A reliable probate lawyer can help you write your last Will. Note that even a current Will is ambulatory, meaning you have the right to change it whenever you wish before your death. Most importantly, your attorney will guide you on how to store your well to ensure someone you trust finds it in the event of your death.
Only after you have passed on will your Last Will be introduced to court. A probate judge will confirm the document's validity, appoint your representative and have it executed according to your wishes.
Duration of the Probate Process
Generally, the probate process takes between 5 and 6 months if everything runs smoothly. The personal representative must allow a 3-month creditor claim period, not to mention that there may be several arranged court hearings. However, certain hurdles can lengthen this process significantly. These hurdles include:
- A need to put real estate on sale before distributing probate estate
- Disputed creditor claims
- Lawsuits from beneficiaries challenging the validity of a will
After the personal representative obtains a letter of administration from the court, it may take 12 months to close the probate estate. This is when the court gives the final accounting and other crucial documents for closing the probate estate when an estate is not required to file federal estate tax returns.
On the other hand, the court will expect filing of the return within nine months after the death of a decedent if the estate has to file federal estate tax returns. Again, the final accounting and other vital documents needed to close the probate estate are due in 12 months from the date the tax return of an estate is due. Note that in both cases, the court can extend the dates if necessary.
Pitfalls to Look Out For When Creating a Florida Last Will and Testament
Creating a Florida last Will is not necessarily a complex process. However, it is a delicate undergoing, and you must beware of possible pitfalls. You can make the process a lot easier by working with an attorney who has an in-depth understanding of Florida laws.
One of the essential laws to know is the Florida Homestead law. It specifies that you cannot plan your homestead in your trust or Will if you have children under 18. In short, if your Will gives your homestead to another person and you pass on before your kids are 18 years, the court will consider the transfer invalid.
On the other hand, Florida Homestead law allows you to devise your homestead to your spouse if you don't have minors. Your spouse can waive their right to let someone else inherit the homestead, such as a child.
Understanding the set provisions is imperative, more so if you have a blended family. In this case, leaving your homestead to your older kids from a previous marriage may leave room for family infighting if you have minors in your current marriage. This is unless your spouse signs to waive their right to a homestead.
When your Will indicates an invalid homestead plan, the court will have to give your spouse a life estate in the property under the arrangement that your children receive a remainder interest. This means that your spouse can live in the homestead until their death unless they waive their right.
It is also possible to experience problems if your Will requires your personal representative to sell the property and distribute the proceeds to your beneficiaries. In this case, the proceeds from property sales don't have creditor protection. In short, your personal representative must settle even typical exceptions like a mortgage before distributing the profits.
Find Arnold Law Near Me
Creating a last will and testament in Florida is a vital part of estate planning. This document allows you to express your wishes and ensure their fulfillment upon your demise. Most importantly, a Will can simplify the probate process and make probate administration more straightforward, faster, and cost-effective. In return, this will save your estate a significant amount of money that will benefit your loved ones. At Arnold Law, we can lend a hand with estate planning and help you put to rest any anxieties you may have about your property. Call us today at 904-264-3627 and let us help you address your estate planning concerns.
