If you make a will and subsequently get married and do not change your will, then the spouse has statutory provisions that automatically apply to her. She gets a homestead, she gets elective share, she may get a family allowance, she may get exempt property, and there may be other benefits. If you have a subsequent divorce and you have not changed your will, then Florida statute provides that the court strikes out all provisions related to the ex-wife or ex-spouse, and that he or she is treated as pre-deceasing the decedent.
You only need to file the most recent version of a will or a trust with the court, so if you have a copy of a document which predates the one that’s filed with the court, you can simply hold onto that. You don’t have to throw it away, but it’s not necessary to file it. If you have a document that postdates the one with the court, you need to figure out how you’re going to file that with the court.
Creditors of a decedent are paid in order according to Florida statute. If there are not enough state assets to fulfill the last class of creditors, they are paid proportionally according to their claims.
An administrator of an estate, which another term for a personal representative, has great flexibility to manage the assets of an estate. They’re allowed to sell real estate. They’re allowed to move brokerage accounts. They just have to understand that they’re going to be held responsible to making payments to the beneficiaries at the end of the day.
Letters of administration is the key document that you’ll receive from the probate court once an estate is successfully opened. It will appoint the personal representative and it will empower that person to handle the assets of the estate.
There are 2 types of estate taxes. There’s federal estate tax and state-level estate tax. In Florida, we have no state-level death tax or estate tax, as it’s also known, so you only have to worry about federal tax liability. This applies to estates that are worth more than 5.4 million dollars. If it’s a couple, you can combine their exemption for an estate worth more than 10 million dollars. Federal estate tax tax bracket is around 40% so it’s very important that you plan with an estate planning attorney to make sure that your estate will avoid any potential federal estate tax liability.
The probate process can be quite lengthy. There are two basic forms of probate for most estates. There’s formal probate which is the full administration for estates that are of a larger size. That can take anywhere from six months to a year. We also have the summery administration which is only available for slightly smaller estates. That can last from three to six months.
Anybody can see a copy of a will that’s been filed with the court. It’s an open document. Therefore you can contact the clerk of court online, determine the case number, and follow the instructions how to get copies of any documents filed with the court.
An attorney is going to assist you in the probate process by initially filing the will and getting a person appointed as personal representative. Then the attorney will be responsible for filing any future pleadings during the probate process until the estate is finally closed.
Florida has no estate tax on the estate level and no inheritance tax for beneficiaries of an estate. You only have to worry about potential federal estate tax liability. An estate worth more than $5.4 million has a potential estate tax liability and will be required to file a 706 estate tax return. If the couple is married, they have a combined exemption of around 10 million, if not closer to $11 million.
The personal representative and the attorney for the personal representative are entitled to reasonable fees for the services they offer to the estate. Both of those parties can contract for their fees before offering services, but generally the State of Florida does have recommendations on what is considered are reasonable fee. For both the personal representative and the attorney for the personal representative, it’s generally around 3% of the estate assets.
Any assets that were held by the decedent jointly with someone else, or that had a pay-on-death beneficiary, can automatically transfer after death. Any assets held in the decedent’s sole name with no designated pay-on-death beneficiary will be required to go through the probate process.
No, the probate judge does not have to approve creditor claims unless the personal representative objects to one of the creditor claims and a separate suit is started by the creditor in order to collect their debt.
An inheritance by an individual is not normally shared with a husband or wife automatically. Normally, an inheritance received by a son or daughter or by a beneficiary is a separate asset and is treated as such until he or she makes the decision to put it into a joint bank account with his spouse, to put it into a joint brokerage account to buy a new home and put it in joint name, to buy a new, better home and put it in joint name. Until the beneficiary makes the decision to co-mingle or to share the asset, it remains their separate asset. Once you co-mingle or share it, it has major impacts on marital rights and inheritance rules for that beneficiary.
Some probate records are available online depending on the state. Florida makes certain information available, so you can go to the County Clerk’s website for the county in which the person passed away, and look up their name to see if an estate has been opened. You can only access limited information online. It will show you the name of the person who passed away, any attorney that’s involved, and the person who did the initial filing. If you want to see the actual documents, you have to visit the county courthouse.
It depends on whether the debt is secured or unsecured and may potentially follow real property, or how the debt was acquired; if it was in the decedent’s name solely or potentially in joint names with another beneficiary.
The attorney representing the personal representative of the estate is reasonable for handling creditor claims. I highly recommend you consult with an experienced probate attorney in order to address the claims of any creditor.
Any property owned by a decedent jointly, or they had a designated pay on death beneficiary, or any property that was owned by irrevocable trust during the decedent and during his life, do not have to go to the probate process.
It’s important to know the names and addresses, and other contact information, of the family members of the person who just died. Often times, they’re going to have to be contacted during the probate process in order to finalize things.
Assets may need to be probated depending on how they are titled. If they were titled in the decedent’s name solely, with no pay on death beneficiary, they will be required to go through the probate process.
A person should name a personal representative who number one they trust with their last penny and number two who will be able to deal with the duties of a personal representative. The duties are to one is to secure or protect and accumulate all of the assets. Duty number two is to pay all the debts and expenses of the estate. Duty three is to distribute the assets in accordance with the decedent’s instructions. So you need a trustworthy person who can fulfill all these duties.
A person is free to name a family member, a non-family member, or a corporate entity in their last will to serve as their personal representative. If the person is a family member of the person who died, then they can be a resident of any state. If the person nominated is not a family member of the person who died, they must be a resident of Florida in order to serve. No personal representative can serve if they’ve ever been convicted of a felony.
You’re free to nominate family members, non-family members, or corporate entities as your personal representative in your last will. If the person you’ve selected is a family member, they can be a non-Florida resident. If they are a non-family member, they have to be a Florida resident in order to serve.
The probate process is initiated in the state where the decedent was the last resident of at the time of death. The laws of that particular state will govern for most assets within the estate. If there is real estate located in different states, then the laws of that particular estate will apply to that piece of real estate.
Any property that was owned by the decedent jointly with another individual or any property owned by the decedent that had a pay-on-death beneficiary are not required to go through the probate process.
That depends on if they are beneficiaries under a decedent’s last will and testament, or maybe beneficiaries under Florida rules of intestacy, if the decedent had no last will and testament, or if they are potential creditors of the estate.
Techniques to avoid probate other than establishing and funding a living a trust are to own assets jointly with right of survivorship, typically between husband and wife or surviving spouse and children; to name beneficiaries on the designation of beneficiaries for pensions, insurance, contracts, annuity contracts; and you can also put payable on death, due on death, held in trust for, and name one or more beneficiaries on accounts, bank accounts, brokerage accounts, stock certificates, eBonds.
An executor or a personal representative, as we call them in Florida, is a person nominated to handle the probate process and to administer whatever assets are in the estate, so they’ll be responsible for hiring an attorney, getting the appropriate process started, and then eventually making final distributions to the beneficiaries.
If your will provides for gifts of assets that you no longer have, the best thing is to change your will, with a codicil, in order to delete those assets. If you don’t delete the asset upon your death, it’s normally, the gift has failed, because the asset is not present. It can present a problem, because if the asset was disposed of in your normal course of living, and you used the proceeds to pay your living expenses, then that will prevent a contest. If the asset was gifted away to another family member, another beneficiary, or to a nursing aide, then there’s a potential of a contest, not of the will, but of the gift before the date of death.
If you cannot find a decedent’s will, the law presumes that he destroyed it. Now, there’s a couple options, is that if you can find a copy or obtain a copy from the last known lawyer who prepared one, if the beneficiaries in the will agree, then you could try to probate a copy of the will. If the beneficiaries of the last will do not agree, then it could end up being a contest where you could have one set of beneficiaries trying to probate a copy and another set of beneficiaries trying to probate under laws of intestacy.
If you can’t find a will, the estate will pass intestate. This simply means that the assets will be distributed to people that the State of Florida has selected as your beneficiaries. Typically, 100% of the assets will go to the surviving spouse, unless it is a non-nuclear family and there’s multiple sets of children. Then the surviving spouse gets 50% of the estate and the rest of the money is divided among the surviving children.
When a decedent dies without a will, Florida statute provides under the laws of intestacy, which is dying without a will, how these assets are distributed. If he has a spouse and no children, then 100% goes to the spouse. If he has no spouse and children, then the assets go equally to his surviving children per stirpes. If he has a spouse and children from that woman or other women, or a spouse, then it goes half to the surviving spouse and half to all of his children from whatever marriages. If there is no spouse and children of multiple marriages, then it goes equally to all his children. If you have no spouse and no children or issue, then it goes up to mother and father. If they’re gone, you need to talk to a lawyer about going to brothers and sisters per stirpes.
It really depends on the type of emergency you’re dealing with. Only the personal representative is empowered to sell property or to deal with the assets of an estate. Any next of kin or potentially nominated personal representative can deal with third parties in order to handle an emergency, but it’s really in the discretion of that third party whether they want to honor dealing with this person.