Do I need a lawyer for Florida probate?
Yes, in almost all
cases. Except for “disposition without administration”
(very small estates) and those estates in which the executor
(personal representative) is the sole beneficiary, Florida law
requires the assistance of an attorney. Even when an attorney
is not required, formal administration has so many technical
rules and pitfalls that it can be very frustrating for the
non-lawyer.
Does the lawyer need to be in the same city or county as the
decedent?
Usually not. Most
probate administrations are uncontested and undisputed, in
which case neither the attorney nor the personal
representative actually goes to court. All the paperwork is
handled by mail. Therefore most estates can be handled by any
Florida-licensed attorney, regardless of where he or she may
actually have his or her office. If there is a court hearing,
sometimes the attorney can appear by phone. If a personal
appearance in court is required, the attorney can retain a
local attorney for that limited purpose, with the client’s
permission.
How much do Florida lawyers charge?
Florida law permits probate lawyers to charge fees based upon
a percentage of the estate, but in many cases THAT RESULTS IN
TOO HIGH A FEE. Many lawyers in Florida charge either a flat
fee or “by the hour.” Estates vary from very simple to
extremely complicated, based on the type of assets owned, the
number of beneficiaries, and special conditions in the Will.
If the decedent owned real property in ten different states,
you can be sure the probate costs will be a lot higher than if
he or she just owned “liquid” funds in financial
institutions. It is not the amount of the estate but the type
of assets and complexity of the Will that should determine the
legal fees in probate cases.
My mother just died, leaving my father a widower. The bank
accounts are in joint names, as is their house, and her
insurance and IRA both list Dad as the beneficiary. Does
anything need to go through probate?
No, jointly held assets between husband and wife almost always
are "survivorship" assets, with the surviving spouse
automatically owning those assets upon the decedent's death.
Insurance and other assets which have a "pay on
death" designation pass "outside probate," at
least when going to the spouse, and the beneficiaries do not
need a court order. They usually have to fill out a form,
submit a certified death certificate or take other steps, but
probate should not be needed.
How long does Florida probate take to finish?
Unless there are complications or disputes, most
nontaxable estates take between six and ten months for
formal administration and four to five weeks for a summary
administration. Taxable estates cannot close until the IRS
signs off on the Estate Tax Return 706, which has to be
filed within nine months after the date of death and often
takes that long to prepare. Taxable estates are doing well
to close in two years. However, in many taxable estates the
work is primarily done in the first nine months of a taxable
estate, and the rest of the time is spent mainly waiting for
IRS review and approval to close the estate. For the IRS
publication on estate tax, see
http://www.irs.gov/publications/p950/index.html.
Do all estates in Florida have to go through “full-blown”
probate?
No, very small estates without real property may qualify for “disposition without administration” and some estates may qualify for summary administration which is a faster and cheaper form of probate administration. Because Florida’s homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property (principal residence), but little else, can qualify for summary administration. Also, if the decedent has been dead more than two years, the estate can be handled in summary administration.
Do I need to come back to Florida to probate
my parent’s estate?
No, not usually for probate. Unless a dispute requires a
hearing, neither the personal representative nor the estate
attorney will actually go to court in Florida. There is no
“reading of the will” like you see in old movies. Everything
is done by mail, email, phone and fax.
Why can’t I just record the Will to change the title to my
parent’s property in Florida?
Title
insurance underwriters in Florida generally do not recognize
a recorded will as sufficient to convey title, and for good
reasons. First,
there is no way for those title insurers to know that the
recorded will was valid and was the final will of the
decedent. Second, there are situations in which the property
cannot pass according to the Will due to the nature of the
property, estate creditors, or other reasons.
My father died recently. He left a will with
my mother as sole beneficiary. We were told we did not need
to go through probate, as everything was held jointly by the
two of them, or named her as the beneficiary. We have now
found that one small checking account was not set up
jointly, an obvious bank error. Everything else has already
been changed to her SSN, but they have frozen this checking
account. Can you please advise me as to what needs to be
done?
If the account is small enough, your mother can get a court
order through a self-help, no-attorney process called
Disposition Without Administration. The maximum amount
allowed in such accounts and the conditions vary from county
to county (because of a very vague statute subject to
different interpretations). Call the probate clerk in the
county where your father resided and see if you can go this
route. Usually the probate clerks are helpful in this
process and can provide your mother with the forms, and they
will not tell you that you need an attorney for this
Disposition Without Administration. If the account is too
large to qualify, a summary administration may be required,
and that is where we can help.
What if the decedent left no Will?
First, be sure there is no will. Just because you do not
quickly find one does not mean there is not one in a safety
deposit box or hidden away with other papers. If the decedent
stated before death that he or she had no will, then you be
fairly sure there was none. If there is no will, Florida has
an “intestate succession” law which states that certain
persons receive the estate. If there is a surviving spouse but
no “lineal descendants” (children, grandchildren, or
great-grandchildren, natural or adoptive), then the spouse
gets the entire estate. If there are lineal descendants, the
spouse gets at least half the estate, but the descendants get
some part also. If there is no surviving spouse and no lineal
descendants, then the estate goes to any surviving parents of
the decedent. If no parents, then to other relatives of the
decedent, starting with brothers and sisters. Many times this
intestate succession is not exactly what the decedent would
have wanted, which is one reason why a will is a good idea.
What if there are not enough assets in the estate to pay all
of the decedent’s debts?
Obviously there will not be any inheritance to the heirs or
beneficiaries, who receive assets only if all debts are paid.
Florida law has a stated priority of claims, in which some
claims (such as funeral expenses and final medical bills) come
ahead of others. Most important in this day of “living
trusts,” Florida law allows the creditors to reach assets of
the decedent which were placed in certain types of trusts, and
requires those trustees to use trust assets if necessary for
estate expenses and claims.
My dad put my name on his checking account so that I could
sign checks for him if he was disabled. Now that he is dead,
the bank says that I can withdraw the money. Is that right?
This is one of the most confusing
situations of an estate in Florida. From the bank’s point of
view, if your name was on the account you could have taken out
money – even all the money – before your dad died. The
bank is protected by Florida law regardless of who put the
money into the account. However, the courts in Florida have
held that such accounts could be a “convenience account,”
which is really property of your dad, and now belongs to his
estate. Unless you are the sole beneficiary, this has the
potential to create some conflict between yourself and the
estate, and legal counsel is needed.
My mother left everything to my sister and nothing to me.
Can she do that?
If you are over the age of 18, yes, she
can, provided that no grounds exist to set aside the will.
Adult children can be disinherited in a will in Florida. Minor
children may have certain rights to homestead property.
Is it ever “too late” to start probate?
No, there is no deadline to open a probate in Florida, and we
have handled estates 50 years after a person’s death. If
family members have paid the property taxes so that no tax
deeds are granted, probate is often feasible for decades.
However, there is a practical limit in some family situations,
because over enough time there may be several probate
administrations needed due to the deaths of the initial heirs
and even children of the heirs. Also, sometimes family members
lose track of each other, so that the current generation does
not know enough about the estate of a deceased heir to know
who the heirs may be. Probate can be started with minimal
information, but it must be through a more expensive formal
administration.
Is there a place on the web where I can learn more about Florida probate?
Check out our Links, especially the Florida Bar Consumer Pamphlet.
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