Florida Probate Litigation Lawyer Blog

Payment of Expenses and Claims for Intestate Estate

March 29, 2010 | by ktlaw4

Whether an individual dies testate (with a will) or intestate (without a will), there are always expenses and obligations that must be paid by the estate. Whether the estate is in Palm Beach, Miami or Fort Lauderdale, each estate has funeral costs, there are probably some medical expenses, there may even be back taxes that must be paid. Those expenses and obligations are paid prior to the beneficiaries receiving their share, if any, of the remaining estate. Florida Statute 733.707 governs the order of payment:

Class 1 – Costs of the estate administration and fees of the personal representative and attorneys.

Class 2 – Reasonable funeral expenses, not to exceed $6,000.

Opening an Intestate Estate

March 16, 2010 | by Bradley H. Trushin

Intestate estates in Florida commence when any interested person (heirs or creditors) files a petition for administration with the local probate court of decedent. For example, if decedent died while domiciled in West Palm Beach, the probate court jurisdiction would be within the 15th Judicial Circuit. The petitioner must state their interest in the estate, information about the last known address of decedent, names of known beneficiaries, a request for the court to appoint a Florida personal representative and finally in an intestate estate, a statement that after exercising reasonable diligence to locate any unrevoked wills, that none can be located.

Under Florida laws of intestacy, the surviving spouse (if any) is entitled to preference in being appointed the personal representative of an estate. If there is no spouse, then a majority in interest of the heirs may select the personal representative. In either case, the court has final say in the decision. Once the court makes that final decision, letters of administration are issued which state that the personal representative has been appointed and qualified by the court to handle the deceased’s estate. The personal representative must be represented by a Florida licensed attorney throughout this process.

After the Letters of Administration are issued, the personal representative must then serve this notice to all known beneficiaries and creditors. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. Any interested person who receives notice has three months to file an objection challenging the qualification of the appointed personal representative, the venue, or the jurisdiction of the court.

Florida Self-Proving Wills

March 4, 2010 | by ktlaw4

Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.

Summary Administration of Wills in Florida: The Pros and Cons

March 1, 2010 | by ktlaw4

Under Florida Statutes Chapter 735, when a probate estate is valued at less than $75,000.00, the estate qualifies for summary administration, a simplified and much quicker probate process. It is important to remember, however, summary administration is not the default type of administration. To obtain summary administration, a petition must be filed by any beneficiary within two years of the death of the decedent. Once the court approves the petition, the court may enter an order allowing the immediate distribution of the assets of the estate to the persons entitled to them. While summary administration may seem ideal for smaller estates, there may be some disadvantages for estates in Miami, Fort Lauderdale or Palm Beach if, for instance, real property owned by the estate is in foreclosure.

When calculating the assets subject to probate, it is necessary to know that most stock accounts, IRAs, life insurance and primary residences are not usually subject to probate and therefore would not be included in the $75,000 dollar calculation. For most estates, the most valuable asset is the primary residence. When this qualifies under Florida homestead, the residence passes directly to their heirs as proscribed by the Florida Constitution and therefore is not included in calculating the probate estate and not part of the $75,000 to determine whether the estate qualifies for summary administration.

Summary administration may seem like a great idea for an efficient distribution of a smaller estate. One major disadvantage, however, with summary administration is that a personal representative will not be appointed by the court. If a decedent died without a will, the court will not name a personal representative in a summary probate administration as they would in a formal probate administration. There is only a petitioner. This is the individual who files the petition for summary administration. A petitioner is not given the same authority as a personal representative to inquire, manage or dispose of assets as the personal representative does. This can cause a lot of problems with the administration of the estate. For instance, if decedent dies with a home in foreclosure, a personal representative may be necessary to discuss the options on this property with the bank. A petitioner would not have such broad authority.

Rights and Duties of Creditors Under Florida Law

February 23, 2010 | by Bradley H. Trushin

Florida has very strict time restrictions as to when a creditor can file a claim against an estate, and if the deadline passes they are likely barred from the claim.

To start the process, the personal representative is charged with the duty of publishing notice to all creditors that the decedent has passed away. Publishing notice means that the personal representative must document this prescribed notice in a countywide newspaper once a week for two consecutive weeks. Such notice can be accomplished by publishing it in a major Miami or Fort Lauderdale newspaper.

If a creditor seeks a claim against the estate, the creditor’s statement of claim must then be filed with the Clerk of the Circuit Court within three months of the date of the first notice published by the personal representative. If the creditor is late in filing, then the claim will likely be barred.

TIME PERIOD FOR FILING AN OBJECTION TO A WILL

November 6, 2009 | by Bradley H. Trushin

Do you know of a will in South Florida that is being administered and want to object to the validity of that will, someone’s appointment as personal representative or the jurisdiction of the probate court? If so, then you must move quickly to object on these issues.

The Florida Statutes state that once you are served with a notice of administration, you have only 3 months to file any objection on such issues. Therefore, it is critical that you file your objection with the court prior to the expiration of 3 months.

The three month time period begins when you are served with notice of administration. Service of notice generally means any reasonable informal method of receiving the notice of administration. If an individual is represented by an attorney, then serving notice on an attorney would be sufficient as well. Generally, you will only get served with this notice if you are the decedent’s surviving spouse or beneficiaries.

Is a no-contest clause in a will enforceable in Florida?

September 10, 2009 | by ktlaw4

A “no-contest” clause in a will is a provision typically used to scare off potential legal challenges by potential beneficiaries who feel they have not received their proper share of an estate. The provision often contains langauge similar to “anyone who challenges this will, shall forfeit any inheritance they may have under this will”. The reason for such clauses is that the testator wants his heirs to avoid any legal proceedings after his death and for his estate to be administered without any disruption.

However, both the Uniform Probate Code and the Florida Trust Code provide that a provision in a will that penalizes any interested person for contesting the will is unenforceable. Thus, these no-contest clauses, often termed “in terrorem” provisions, will not be recognized by a Florida judge in will contest proceedings.

What does all of this mean for you? If you feel cheated out of the share you received in a decedent’s will, you may contest this will despite there being a no-contest provision.

Methods to Attack a Will

August 27, 2009 | by Bradley H. Trushin

Have you been wrongfully denied your share in a will? If so, you may want to contest the validity of that will so that you may obtain your perceived share of the decedent’s estate. A will can be challenged in a Florida probate proceeding on a number of grounds.

Fraud – A person was fraudulently induced into signing their will through lies, trickery or deceptive acts. For example, decedent’s son places a document in front of his dad stating it is a form that needs to be signed for the mortgage on decedent’s home in Miami, Florida. The truth is that the form is not a mortgage but rather a will leaving the entire estate to his son.

Duress/Coercion – A person acts under duress when an unlawful threat or pressure forces that person to do something in their will that they would not normally do. For example, decedent’s daughter of Palm Beach threatens that she will physically hurt her father, unless he rewrites his will to leave at least half of his estate to her.

Compensation of a Personal Representative in Florida

June 16, 2009 | by ktlaw4

For his or her services, a personal representative of an estate is entitled to compensation from the estate assets, without a court order. Florida Statute §733.617 provides the general rule in Florida for the commission of a personal representative. The Statute provides that the commission will be presumed reasonable for ordinary services provided by the personal representative. The commission is based on the value of the estate, which includes the inventory value of the probate estate assets and any income earned by those assets during administration. The commission is calculated as follows: 3% for the first $1 million, 2.5% above $1 million and not exceeding $5 million, 2% above $5 million and not exceeding $10 million, and 1.5% for all above $10 million.

For example, assume an estate where decedent was domiciled in Palm Beach, Broward or Dade County, is valued at $20 million dollars. The personal representative is entitled to 3 percent of the first $1 million dollars or $30,000. For the amount between $1 million and $5 million dollars, the personal representative is entitled to 2.5 percent or $100,000. For the amount between $5 million and $10 million dollars, the personal representative is entitled to 2 percent or $100,000. And for the amount above $10 million and up to our $20 million dollar estate, the personal representative is entitled to 1.5 percent or $150,000. Thus, for an estate worth $20 million dollars, the personal representative is entitled to $380,000 in commissions.

In addition to this commission, a personal representative is allowed additional reasonable compensation for extraordinary services including sales of real or personal property, conducting litigation for or against the estate, any involvement in court or IRS proceedings, running the decedent’s prior business and issues with protected homestead such as with a home in Fort Lauderdale, Florida.

Personal Representative’s Duty to Search for Beneficiaries of an Estate

March 11, 2009 | by ktlaw4

If you or someone you know has been appointed a personal representative of an estate then it is important to realize that Florida law imposes certain duties on a personal representative to act in the best interest of all interested persons. One of those duties includes determining all possible identities and locations of beneficiaries of that estate.

Although a personal representative does not have to prove beneficiaries’ identities beyond all certainty, they must use reasonable diligence to determine the identity and location of those people who may be heirs to an estate.

It is important for a personal representative to keep a detailed record of their methods of investigations, when trying to determine whom is a potential beneficiary or heir of an estate. This detailed record will allow a personal representative to show that they used an effective search method and prove they have fulfilled their duty. While a personal representative has the autonomy to conduct searches in a variety of ways, the following list indicates some preferred and commonly used search tools: government records from agencies such as Social Security Administration, Internal Revenue Service, The Census Bureau, the Department of Defense, the Department of Homeland Security, and various Property Appraisers websites. Other institutional record holders such as courthouses can provide birth certificates, marriage licenses, marriage applications, death certificates, employment records, adoption applications, records of divorce, child support obligations, custody determinations, and various other administrative paperwork. Personal files and miscellaneous records can also be found from other resources that include those documents contained in hospitals and cemeteries, financial records held by banks, such as deeds to houses and automobiles. Furthermore, it may be helpful to confer with insurance companies, credit unions, credit card companies, etc. Finally, a comprehensive search can include internet searches and other records contained by various civic organizations, religious institutions, and various family records such as genealogical records, pictures and family trees.