Probate

November 29, 2011

When is a Probate in Florida required?

Thumbnail image for probate.jpg When is a Florida probate required?

If a Jacksonville resident dies owning anything in his or her name individually a probate is necessary in Florida. In addition, if a person living in another state owns real property (a home or land) in Florida there will also need to be a probate case opened in Florida. Some examples of individually owned assets include a checking account, a stock account, an insurance policy payable to the insured’s estate or someone who does not survive the decedent, a home or other real estate, or bonds. Just because a Florida will names an asset and a beneficiary, does not mean that the asset will be distributed per the terms of the will. If such asset is jointly owned, for example, it will generally pass to the surviving joint owner (with few exceptions). To carry out the instructions in the will, you must first open a probate. In Florida if there is more than one beneficiary, a lawyer will be required to open the probate. This is because if while you can represent yourself in a probate case, you cannot represent another if you are not a licensed attorney in Florida.

When is a probate not required?

November 15, 2011

Choosing Your Executor in a Florida Will.

by David M. Goldman

After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else’s upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.

A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.

Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:

November 9, 2011

More Estates Need Estate Tax Returns in 2010

by David M. Goldman

Jacksonville Probate Lawyer IRS Form 706 for Estate Tax Return While many of you may be thinking that fewer Florida Probate cases will involve federal estate tax returns in 2011, the opposite is actually true. It seems with the new $5 Million estate tax exemption that most estates will not need to file a tax return. What most people do not realize is that by failing to file an estate tax return in 2010 (Form 706) the spouse of a decedent will lose the portability of the unused portion of the estate tax exemption that is available to the surviving spouse. Form 706 was just released by the IRS and if you know someone who passed away in 2011, you should have them ask their CPA or Tax Attorney about the benefits of filing a Form 706 and the risks and potential tax liabilities if one is not filed.

November 8, 2011

Who gets to make funeral decsisions in Florida?

by David M. Goldman

Who gets make the funeral arrangements for our parents? Why was Dad or Mom Cremated? How can I stop my mom, step-parent, parents significant other, or sibling from the improper disposition of my relatives remains?

These are all questions dealing with the same issue: Who gets to make the decision about the disposition of a person who has recently died? As a Florida Estate Planning Lawyer we always talk to our clients about the importance of discussing your desires with those who will make the decisions, but what if someone takes over and does something that was not wanted? Can it be stopped? In most cases, the damage may be done before you have knowledge of what is happening, but in some cases there is time to stop arrangements. Florida statutes define the legally authorized person who can make the decisions regarding disposition of a body. In doing so there is a priority list that starts with the decedent, as it should.

That means if you make arrangements regarding your disposition, your decisions should be followed – as long as they are known, and able to be learned of prior to alternative arrangements being carried out.

November 7, 2011

Florida probate Hanbook Updated

by David M. Goldman

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year’s legislature. If you have a previous copy or would like an undated version please let us know by requesting on this page.

October 6, 2011

Steve Jobs Will Reading and His Estate Plan

by David M. Goldman

Today there is much speculation about what Steve Jobs’ will reading will reveal about his life. Steve Jobs has always been very quiet and protective about his personal life and we all know that he has been very good at protecting business secrets.

I was interviewed today about what Steve Jobs’s will and the potential huge estate tax that will be paid. I think if you look at how he managed his life and businesses, it is likely that if Steve had a will, it will not be read and there will be no probate. I believe that none or almost none of his assets will pass under a traditional probate and that there will be no boom to the economy from his huge estate. Steve was married at the time he died and as such jointly held assets or those in a joint trust will probably not be subject to any estate taxes.

It is unlikely that we will hear anything in the next few months and may never know about Steve’s estate.

October 3, 2011

Florida Probate Changes

by David M. Goldman

IN RE AMENDMENTS TO FLORIDA PROBATE RULES

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES.

No. SC11-1575.

September 9, 2011

Personal Represntative of Yale Student’s Estate Files Wrongful Death Lawsuit

by David M. Goldman

It is the PR’s job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

August 25, 2011

Can Minor Children Pick the Personal Representative of an Estate

by David M. Goldman

In Florida Statute 733.301(1)(b)(2) defines how a minor child can participate in a probate proceeding. Minor children are not able to participate directly, but can do so through a court appointed guardian over their property. In a recent Florida case out of the 2nd District of Florida the appellate court found that it is an error not to give the minor children an opportunity to have a guardian appointed before appointing a personal representative.

The court found that although the mother, as natural parent, had no right to select the personal representative, she did have the right to file objections on behalf of her children. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that “[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.”

Although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is “`in no sense’ a statute of limitations or a mandatory non-claim provision.” Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985).

August 24, 2011

Florida Probate and Timeshare Ownership?

by David M. Goldman

In Florida Probate is the legal process which occurs after death and is used to transfer assets and pay the debts of the person who is deceased. This process takes place in the Civil Court where the person lived at the time they passed away or in the county where the decedent owned property in Florida. Additionally, a probate proceeding is usually required in each state where the decedent owned property in their own name without a right of survivorship.

The basic steps to a Florida probate case are:

Filing a petition in the Probate Court