Florida Probate

Probate is the state-supervised distributions of a decedent's sole-named assets. Probate exists for two reasons:

  1. To give creditors an opportunity to file claims;
  2. To make sure the assets ultimately get to the appropriate beneficiary

The laws of Florida are very specific as to execution requirements that must be met for a Last Will and Testament to be valid, and noncompliance has the same effect as not executing the Will at all. If you think it is worthwhile to have a Last Will and Testament, then you should hire a skilled attorney not only to draft the document for you, but also to supervise the execution of the document. Many wills are thrown out of court by disgruntled beneficiaries because the will was not executed in accordance with the requirements set forth in the Florida Statutes. If you die with a valid Last Will & Testament, then you have chosen who will inherit your estate. If you die without a valid Last Will & Testament, then the state has chosen who will inherit your estate. The laws of "intestate succession" govern who receives the estate of an individual who has died without a valid Last Will & Testament. The Florida Statutes provide:

  • 732.101 Intestate estate.
    (1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code.
    (2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property.
  • 732.102 Spouse's share of intestate estate.
    The intestate share of the surviving spouse is:
    (1) If there is no surviving lineal descendant of the decedent, the entire intestate estate.
    (2) If there are surviving lineal descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.
    (3) If there are surviving lineal descendants, one or more of who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
  • 732.103 Share of other heirs.
    The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
    (1) To the lineal descendants of the decedent.
    (2) If there is no lineal descendant, to the decedent's father and mother equally, or to the survivor of them.
    (3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
    (4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
    • (a) To the grandfather and grandmother equally, or to the survivor of them.
    • (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
    • (c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
    (5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
    (6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(b), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the lineal descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

Probate, like guardianship, can be avoided altogether by not leaving any assets in your sole name. There are many ways to do this, for example by designating a beneficiary on any pay-on-death accounts or life insurance policies or by putting a joint-tenant on the account or title with you. However, these ways of avoiding probate may not accomplish your estate planning objectives. For example, if you have four children and want to leave your estate to them, it is difficult to put all four of them on your checking account with you. The best way to keep assets out of probate and ensure that there is no confusion or fighting about who gets what when you die is to create and fund a revocable trust.

Probate Administration

If a loved one has died with probateable assets then Mr. Thomas can help you through the process of probate administration. The death of a loved one can is difficult emotionally and can be made worse by legal complications. Many legal questions are raised in the probate process that could result in years of delay and unexpected financial drain on the estate. Mr. Thomas' experience and focused approach in handling probate matters provides needed assistance in solving seemingly insurmountable estate and legal obstacles.

Estate and Tax Administration

Even if probate adminstration is not needed, estate administration is required in order to transfer assets and pay taxes, if any. For large estates (in 2005 any gross estate in excess of $1.5 million), a Federal Estate tax return, form 706, is due. In addition to handling routine probate administration, Mr. Thomas also counsels his clients about the following:

  • Federal Estate Tax Returns
  • After death-tax elections
  • Asset valuation discounts
  • IRAs or 401Ks - roll-over (or taxed)
  • Forced sale of estate assets & businesses
  • Rights of the surviving spouse and children
  • Deferred taxation

 

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