DAVID A. SILVERSTONE
FLORIDA PROBATE AND ESTATES LAWYER.
Probate Law FAQ?
1) Should I have a will?
Yes. A will allows you to control the person or persons to whom your property is left at death. Without a will, your property passes under the “intestacy laws” which designates the persons to whom the property goes to. If you wish to plan who receives which portion of your estate when you die, you should have a will. It is a common misconception that only “wealthy” individuals need wills. It is often surprising the amount of assets even persons of modest means accumulate and own upon their deaths.
2) What is “probate” and why is it necessary?
Probate is a court proceeding in which a judge enters an order (or orders) which transfer title to a deceased person’s property to the beneficiaries named in their will (or, if no will, to those named in the intestacy laws). For example, if a person dies owning a savings account in her name, that person’s heirs will not be able to get at that money until the probate is opened, and the judge enters the proper orders. Likewise, if a person dies owning a house, the house cannot be sold, or passed on to the beneficiaries, until a probate is opened, and a judge enters the proper orders.
The procedure of probate actually involves much more than simply passing assets on to beneficiaries. In all probate proceedings, the debts of the deceased person must be paid from the assets of the probate estate. There is a whole procedure for giving notice to creditors of the decedent, which much be done in every probate. There are income taxes of the deceased which may need to be paid. There may be real property to be sold. In larger estates there may be a Federal Estate Tax to be paid. In larger estates the services of an accountant may be necessary to handle tax issues. Even a small probate can take six month to complete.
3) What is a “personal representative” or “executor” or “administrator”?
All of these terms mean the same thing. This is the person who is named in a will to be in charge of administering a probate estate, or who is appointed in an intestate estate. This is the person who is ultimately in charge of making sure the estate’s assets are properly distributed. Even if the personal representative is named in a will, a judge must enter an order appointing that person personal representative, and issue “letters of administration” before that person has any authority to act. The personal representative is a “fiduciary”, which means a person with the highest degree of trust under the law, who is obligated to handle the assets of the decedent in a manner equivalent to how a prudent person would handle his own assets. The personal representative must locate and gather the assets of the estate. The personal representative must find out who the creditors of the estate are, make sure proper claims against the estate are paid, must make sure the estate pays whatever taxes may be due, and must ultimately distribute the remaining assets according to the decedent’s will, or, if no will, according to the intestacy laws. In most estates, the personal representative hires an attorney to handle the legal part of administering the estate, since probate laws are quite involved, even in the simplest of estates. Personal representatives are entitled to be compensated from the estate assets.
4) Who can serve as personal representative for a Florida probate estate?
Any person who is a Florida resident at the time of the decedent’s death may be appointed personal representative. Nonresidents of Florida may be appointed personal representative if they are the decedents’ spouse, a blood relative of the decedent, or the spouse of a blood relative.
5) I want to sell my deceased father’s/mother’s husband’s/wife’s real property. Do I have to open a probate proceeding to do this?
That depends. If the deceased person held title jointly with another person, either as “husband and wife” (tenants by the entireties), or as “joint tenants with right of survivorship”, then the property automatically passes to the surviving person(s) named on the deed. If, however, title is held solely in the deceased person’s name, then the property must go through probate. Probate is a court proceeding where a judge determines who has inherited the property, and enters a court order transferring the property to that person or persons. Until this is done, the property is in “legal limbo”, since no living person has any right to the property until it goes through the probate courts.
6) What is a “summary administration”?
Summary administration is a simplified form of probate administration when the total value of a decedent’s estate is $75,000.00 or less. In calculating the value of the estate, it is essential to know that under Florida law, a person’s residence, or “homestead” is considered exempt property, and therefore it is not included in computing the value of the estate assets. In fact, one of the more common usages of summary administration is to probate estates where the residence, or “homestead” is the only asset in the estate. Summary administration is faster and less costly than a full probate administration.
7) My father/mother/husband/wife resided in another state at the time of death, but owned real property in the state of Florida. Do I have to open an estate in Florida, if there is already an estate opened in another state?
Yes. You need to open what is called an “ancillary estate” in Florida. Certified copies of the will and other documents from the other state’s probate proceedings will need to be filed in Florida. From there, it will proceed as with any other Florida estate. If the personal representative in the other state does not qualify to serve as personal representative in Florida, a new personal representative will need to be appointed.
8) I believe I have been wrongfully taken out of my father/mother/uncles/aunt’s will. What can I do?
You will need to file a “will contest”. That means you will need to retain an attorney to ask to have the will declared void. There are several grounds for “contesting a will”. One is “lack of testamentary capacity” which means that, at the time the will was executed, the decedent, due to physical or mental illness, was not truly aware of what his assets were, and/or who the “natural objects of his bounty” were. Another ground is fraud, as in where the will is a forgery, or when the contents of the will were misrepresented to the decedent, or switched, or altered. Another ground is “undue influence” where a person who has a close relationship to the decedent misuses the decedent’s trust by persuading the decedent to change the will at a time when the decedent is ill and very dependent on that person. Probate litigation is a very complex process, and the attorney needs to have a thorough understanding of probate law as well as litigation. Will contests can be bitter, pitting family member against family member, and the attorneys’ fees and costs can be significant.