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Probate

ProbateIntroduction: Florida probate is a legal proceeding for dealing with the Florida assets of a deceased person. According to the Florida bar:

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.

Although every case is different, the Florida probate process will usually include:

  • Establishing the validity of the Last Will and Testament (if any);
  • Obtaining Florida letters of administration appointing someone to serve as personal representative of the estate;
  • Gathering and listing the decedent’s assets;
  • Paying all of the decedent’s outstanding debts; and
  • Distributing the remainder of the decedent’s assets to his or her beneficiaries or heirs at law.

Is Florida Probate Necessary? Whether or not a Florida probate proceeding is necessary depends on what assets the decedent owned and how they are titled. Nonprobate assets will pass to others automatically, without the need for probate. There are four basic categories of nonprobate assets:

  1. Trust Property – Assets that are titled in the name of a valid living trust are not assets of the estate and do not need to go through probate.
  2. Beneficiary Designations – Assets with payable-on-death or transfer-on-death designations do not go through probate. Examples include life insurance and retirement or other financial accounts with valid beneficiary designations.
  3. Property Owned Jointly with Rights of Survivorship or Tenancy by the Entirety – Property that is owned jointly with rights of survivorship or by tenancy by the entirety passes automatically to the surviving owner at the death of one owner.
  4. Life Estate Deeds – Real estate that passes to a remainder beneficiary under a life estate deed (including a Florida Lady Bird deed) is not a probate asset.

If all of the decedent’s assets are nonprobate assets, probate will not be required.

Probate assets include real estate owned only by the decedent, bank accounts in the name of the decedent, and life insurance policies that fail to name a beneficiary or are payable to the estate. If the decedent owned any of these assets, Florida probate will probably be required.

More Information:

Estate Planning Question: I have a Last Will and Testament. Doesn’t this mean that my estate won’t need to go through probate?

No. A will does not avoid probate. In fact, the term probate technically refers to “proving” a will. There are ways to structure an estate plan to avoid probate (such as using revocable living trusts), but just having a will won’t do the job. Probate doesn’t depend on whether or not you had a will, but on what assets you own and how they are titled.

ProbateTypes of Florida Probate Proceedings

There are several different types of Florida probate proceedings, each of which depends on the circumstances involved. Florida probate alternatives include:

  • Formal Administration – Formal administration is the most common type of Florida probate proceeding. A formal administration will always clear title to a decedent’s assets, no matter the value. Because of this, formal administration is the best form of probate for most estates. For more information on formal administration, see Formal Administration in Florida.
  • Summary Administration – Summary administration is a shortened form of probate. It only applies if the decedent has been dead for more than two years or if the total value of the decedent’s property (exclusive of exempt assets) does not exceed $75,000.00. See the discussion of Florida Summary Administration for more information.
  • Ancillary Administration – Ancillary administration is administration of the estate of a decedent that did not live in Florida. In many cases, an ancillary administration does not differ substantially from a formal administration. But there are situations in which ancillary administration can save time and costs.
  • Disposition Without Administration – Disposition without administration is a court procedure for disposing of a deceased person’s assets without any form of administration. Because it is available only in very limited circumstances, it is rarely used.

How much does probate cost? Our most common questions from prospective clients have to do with the cost of Florida probate. Most people understandably want to know how much probate will cost before they start the process. And if the estate is relatively small, knowing the cost of probate can help you decide whether it is worthwhile.

The biggest cost in a Florida probate proceeding are usually attorneys’ fees. Although there are other costs (such as filing fees, publication costs, or accounting fees), the bulk of probate expenses are attributable to the fee paid to the attorney who represents the personal representative(s) of the estate. And because Florida rules require a a probate attorney for most probate cases, attorney’s fees are usually an unavoidable part of the process. In Florida, the attorney for a personal representative can receive “reasonable compensation payable from the estate assets.” In other words, the attorney is paid from the assets of the estate (assuming that there are sufficient assets to cover the attorney’s fees). Attorney’s fees for Florida probate are agreed upon in the arrangement between the attorney and the personal representative. But since the amount paid to the attorney reduces the amount that the heirs or beneficiaries would otherwise receive, Florida law requires that the expenses to be “reasonable.” If the fees are unreasonable, the court has the authority to reduce the attorney’s fees.

What Are “Reasonable” Attorney’s Fees?

As with other areas of the law, the determination of “reasonableness” of attorney’s fees is inherently subjective. Two people can disagree about whether a fee is reasonable in a specific case. The reasonableness of attorney’s fees is not usually an issue in court proceedings. The probate judges see enough cases that they know how much an estate should cost. If the proposed fees are disclosed to third parties and no objection is made, the fees will likely be approved. But when the issue does arise, the clients, personal representatives, and judges need an objective standard to help them determine whether fees are reasonable. To provide clarity, the Florida probate code lists fees that are presumed to be reasonable in a given estate followed.

Compensable Value of Estate

Estate ValueAttorney Compensation
$40,000.00 or less$1,500
$40,000.01 to $70,000.00$2,250
$70,000.01 to $100,000.00$3,000
$100,000.01 to $1,000,000.00$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00
$1,000,000.01 to $3,000,000.00$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00
$3,000,000.01 to $5,000,000.00$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00; plus 2% on the value of the estate from $3,000,000.01 to $5,000,000.00
$5,000,000.01 to $10m$3,000; plus 3% on the value of estate from $100,000.01 to $1,000,000.00; plus 2.5% on the value of the estate from $1,000,000.01 to $3,000,000.00; plus 2% on the value of the estate from $3,000,000.01 to $5,000,000.00; plus 1.5% on the value of the estate from $5,000,000.01 to $10m

Note: Homestead property is not counted toward the compensable value of the estate.
The Florida probate code also provides that attorneys can be compensated for “any extraordinary service.” What constitutes an extraordinary service is case-specific, but can include will contests, audits, tax advice and returns, and dealing with real property. Many Florida attorneys treat these guidelines as an absolute rule and set their fees accordingly. This can be unfair to the client. For example, the work required to probate an estate consisting of a $1 million bank account isn’t substantially more difficult than the work required to probate a $100,000 bank account. Under the guidelines, the attorney would receive $30,000 for the $1 million account and $3,000 for the $100,000 account. This result is not required by law. Keep in mind that the guidelines only establish what fees the court will presume to be reasonable. They do not require that the attorney be paid that amount.

ProbateIntestate Property

Intestate property is property that has not been disposed of by a Florida last will and testament. Florida intestate law functions as a default mechanism to distribute property that was not properly devised by a will. These rules designate certain people as heirs to intestate estates and specify how the shares are to be distributed.

Florida intestacy may be whole or partial. It is whole if a person did not leave a will or left a will that is invalid. Intestacy is partial if a will exists but only disposes of part of the person’s assets. This may occur when portions of a will are determined to be invalid.

Florida Intestacy Rules

  • A surviving spouse of the decedent receives the entire estate if the decedent has no surviving lineal descendants (children, grandchildren, great-grandchildren, etc).
  • A surviving spouse of the decedent will also receive the entire estate if the decedent had descendants that are also descendants of the surviving spouse and neither the decedent nor the surviving spouse had any other children.
  • If the decedent is survived by both a spouse and lineal descendants and any of the lineal descendants is not also a descendant of the spouse, then the spouse is entitled to one half of the estate, and the descendants share the balance, per stirpes.
  • If there are lineal descendents but no surviving spouse, then the estate is shared by the lineal descendants.
  • If there is no surviving spouse and no lineal descendents, then the estate passes to lineal ascendants (parents, grandparents, great-grandparents, etc.) and collateral relatives (siblings, aunts, uncles, etc.). This means that if the decedent’s parents are alive then they are entitled to the estate. If the parents are not alive, then the estate passes to the decedent’s brothers and sisters and their descendents, per stirpes.
  • If none of the above heirs survive, then the estate passes to the heirs of the decedent’s grandparents, per stirpes, with one half of the estate going to the decedent’s maternal relatives and one half going to the decedent’s paternal relatives. If there are no relatives on one side, then the entire estate passes to the other side.

Per Stirpes

“Per stirpes” is a method of distributing shares of an estate. The basic concept is that each descendant is entitled to an equal share, and the share of a deceased descendant is divided equally among his descendants. For example, assume that a decedent had a son and a daughter. The son had a child, and the daughter had two children. The decedent dies without a will or a surviving spouse.

  • If both the son and the daughter are alive, they split the estate equally between them, each receiving 50%.
  • If the daughter is dead at the time of the decedent’s death, then her children share their mother’s portion, each receiving 25% (half of 50%). The son still receives his 50%, while his child receives nothing.
  • If both the son and the daughter are dead at the time of the decedent’s death, then both of their share pass on to their children. The two children of the daughter again receive 25% (half of their mother’s 50%), which the child of the son receives the son’s share of 50%.

Disqualification By Misconduct Or Divorce

A person involved in the murder of the decedent is disqualified from inheriting any share of the estate. A criminal conviction for murder is conclusive for this purpose. In the absence of a criminal conviction, the probate court may still find that there was an unlawful killing by the greater weight of the evidence, in which case the killer is likewise disqualified.

A spouse’s right to inherit ends at the time of divorce. However, a spouse who is separated or in the process of divorcing still inherits if the decedent dies before the marriage is dissolved.

Intestacy And The Probate Process

Intestacy does not significantly change the probate process. The biggest difference is that there is no need to prove the validity of a last will and testament. Otherwise, the personal representative’s role still involves opening, administering, and closing the estate.

Wills

There are several types of wills, only some of which can be recognized as a valid Florida last will and testament.

  • Attested wills are written and signed by the testator (or by a proxy) in the presence of two witnesses. They are recognized in Florida and are the most common type of Florida last will and testament.
  • Military wills are executed in accordance with Federal law by an eligible person. They contain many of the same formalities as attested wills and are valid in Florida.
  • Holographic wills are handwritten and signed only by the testator, without the signatures of witnesses. They are not recognized in Florida. But a handwritten will that is properly signed and witnessed can be valid as an attested will and is not considered holographic.
  • Oral wills are not in writing, but spoken to another person. They are invalid.
  • Out-of-state wills can be valid in Florida, depending on the circumstances. If the will is in writing and valid in the jurisdiction where it was executed, it is valid in Florida even if it does not meet the Florida requirements.

If the document falls into one of these categories, the estate will be probated as a testate estate. If not, the decedent will be treated as having died without a will and the estate will be probated as an intestate estate.

Requirements For Valid Attested Wills

Attested wills are the most common type of Florida last will and testament. An attested will meets the following requirements:

  • It must be in writing. Oral wills are invalid.
  • It must be signed. The testator must sign at the end, or a proxy may sign for the testator at his direction and in his presence. It is common practice for a testator to sign or initial each page, but this is not a legal requirement. Some probate courts have found validity even though the testator signed in the wrong place.
  • It must be attested to by two witnesses. The witnesses can be any persons competent to be witnesses. There is no age requirement. To be competent a witness must, at the time of execution, have (1) the ability to observe the testator sign the will, and (2) and the ability to understand the nature of what the testator is doing.
  • The testator must sign the will in the presence of the two attesting witnesses or acknowledge that he has previously signed the will (or that a proxy has signed the will for him). The witnesses need not read the will, but they must sign it at the time of execution, after the testator has signed, and in the presence of the testator and each other.

Testamentary Intent And Testamentary Capacity

For a will to be valid, the testator must have testamentary intent and testamentary capacity at the time it is executed. Testamentary intent means that the person who created the document intended for it to serve as his will. Titling the document as a will is evidence of testamentary intent, but is not conclusive.

Testamentary capacity has two parts. First, the person must be of the age of majority. Age of majority is defined as being 18 years old or older, or being an emancipated minor. Second, the person must be of sound mind. “Sound mind” is defined as the ability to understand the extent of one’s property, the natural objects of one’s bounty, the nature of the disposition, and these matters in relation to each other.

Florida Will Contests

A Florida last will and testament can be challenged on several grounds, including defects in execution, forgery, fraud, duress, mistake, lack of testamentary capacity or intent, revocation, and undue influence. The statute of limitations for will contests is three months from the date of service of a copy of the notice of administration on the objecting person.

In a will contest, the burden is on the one who is presenting the will to establish its validity. If it can be shown that the will appears to be valid, the party contesting the will then has the burden of showing that it should not be admitted to probate. But if the will is contested on the grounds of lack of testamentary capacity, undue influence, or fraud, the party contesting the will need only show facts that establish a presumption of the existence of the alleged ground in order to return the burden of proof to the proponent.

Probate Note: Will contests often arise under suspicious circumstances. An elderly widow disinherits her children and leaves everything to her new beau. A feeble-minded grandfather leaves everything to his caretaker. Situations like these set the stage for a dispute.

Often there are valid reasons for the testator’s decision. Perhaps the elderly widow had a good reason for disinheriting the children. Perhaps the grandfather was not unduly influenced by the caretaker. In this type of situation, the assistance of a skilled estate planning attorney are critical. A good attorney will help document the basis for the decisions and provide a solid defense in the event of a later challenge.

 

Schedule A Personalized Consultation

Aaron Saoud, Esq.

Call Now For A Personalized Consultation
(813) 773-2900

Call Now For A Personalized Consultation (813) 773-2900