PROBATE IN FLORIDA

    You can find answers to Frequently Asked Questions about Florida probate here.

What is Probate?

More Video Answers to Florida Probate FAQs - Here

The Jacksonville Florida probate lawyers and attorneys associated with The Coleman Law Firm, PLLC, assist those who need legal representation for probate of the will in Florida probate court administration, real estate probate of real property in Florida, summary probate administration of Florida probate cases, ancillary probate for non-Florida residents who die owning real estate or other probate assets in Florida, Florida probate litigation, Florida will contests, and Florida will disputes, in the court of probate throughout the State of Florida.  If you need the assistance of a Florida probate lawyer, please contact your Jacksonville lawyer for probate at 448-1969, toll free at 888-492-2468, or email us at Info@TheColemanLawFirm.net.  

Do I need an attorney to handle a probate estate?

As experienced Florida probate lawyers and attorneys, we are familiar with the rules of probate, and know how important it is for the probate estate administration process to be completed as soon as reasonably possible, and as efficiently as possible, regardless of whether the Florida probate estate is simply to probate a Florida real estate deed, or an complex probate estate that is subject to the federal estate taxes, or “death tax.”  Our Florida probate lawyers and attorneys provide our clients with complete and timely probate information and legal advice regarding Florida law and probate, and the status and activities of each Florida probate case.  We are familiar with the Florida probate law, Florida probate rules, and the probate codes followed by the Florida probate courts, the probate process, and the Florida probate forms necessary for complying with Florida probate law.  Our Florida probate lawyers and attorneys counsel our clients on each phase of the probate process and the estate administration process, whether its a will or trust, and provide direction for each step that must be taken.  Our Florida probate lawyers and attorneys promptly respond to all questions that are asked, and patiently provide our clients with a complete explanation of what needs to be done to comply with Florida probate law, and why.  We can help you understand what is probate and how to probate a will in Florida.

As experienced Florida probate lawyers and attorneys we understand the emotional issues that become involved in Florida probate courts, and Florida probate litigation in particular, whether the issues involve will contests, will disputes, inheritance disputes, litigation for removal of a personal representative or executor from a Florida probate estate, for removal of a personal representative for breach of fiduciary duty by the personal representative, or a will challenge based on irregularities in the formal requirements for the execution of a last will and testament, forgeries, the exercise of undue influence in the procuring of a last will and testament, the will maker's lack of capacity or inability to understand the contents of a last will and testament, the improper administration of a probate estate by the personal representative, or disputes that arise between the surviving spouse and the children of previous marriages, especially where the Florida spousal elective share or an inheritance through Florida intestacy law may be involved for an intestate estate. Our Florida probate lawyers and attorneys are also experienced in pursuing actions for abuse of a power of attorney, financial abuse of the elderly, and related actions in the Florida probate courts.  If you find your loved one's estate in probate, we can help you.

Who pays for the estate attorney?

Our probate fees for representing you in the administration of a Florida probate estate or trust administration will depend on the facts and circumstances of your particular case.  Often our Florida probate lawyers will work on a flat fee or fixed fee basis.  Other times, a Florida probate lawyer's or attorney's hourly rates are appropriate.  In appropriate Florida probate or will contests litigation, our Florida probate lawyers will consider working on a contingent fee basis, which means there is no fee if there is no recovery.  In particular, if your Florida probate administration is for the sole purpose of a Florida real estate probate, i.e, transferring title to Florida real property, our Florida probate lawyers usually will work on a fixed fee basis, so that you will know from the beginning exactly what your total cost will be for the Florida probate of the will. Our probate office will provide you with all of the probate court documents and probate forms that are needed for your case.

We hope the following series of questions and answers will help you gain an understanding of some of the issues involved in Florida's courts of probate proceedings, whether a formal administration, a summary administration, or the probate of Florida real estate, and will assist you in determining the proper course of action for you in your Florida probate matter.

If you find that you need help with probate, we encourage you to seek the assistance of a Jacksonville  Florida probate lawyer or attorney, and we sincerely hope you will contact your Jacksonville lawyer for probate matters at 904-448-1969 (toll free at 888-492-2468) or email The Coleman Law Firm to discuss your needs with us so that we can help guide you through the Florida probate of a will process.

What should I do to prepare for seeing an estate attorney?

FREQUENTLY ASKED QUESTIONS ABOUT FLORIDA PROBATE 

1. WHAT IS PROBATE COURT AND FLORIDA PROBATE LAW ?

2. WHAT ARE FLORIDA PROBATE ASSETS?

3. WHY IS PROBATE NECESSARY IN FLORIDA?

4. WHAT IS A LAST WILL AND TESTAMENT?

5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?

6.  WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?

7. WHERE ARE PROBATE COURT DOCUMENTS FILED IN A FLORIDA PROBATE?

8. WHO SUPERVISES THE FLORIDA COURTS OF PROBATE ADMINISTRATION?

9. WHAT IS A PERSONAL REPRESENTATIVE (EXECUTOR), AND WHAT DOES THE PERSONAL REPRESENTATIVE DO IN A FLORIDA PROBATE ESTATE?

10. WHO CAN BE A PERSONAL REPRESENTATIVE (EXECUTOR)?

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?

13. HOW ARE PROBATE ESTATE CREDITORS HANDLED?

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE?

18. HOW LONG DOES PROBATE TAKE IN FLORIDA?

19. HOW ARE PERSONAL REPRESENTATIVE PROBATE FEES AND ATTORNEY'S FEES DETERMINED IN FLORIDA PROBATE?

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL PROBATE ADMINISTRATION IN FLORIDA?

21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?



1.     WHAT IS PROBATE AND FLORIDA PROBATE COURT?

In a typical probate administration, what documents are initially filed with the probate court?

A probate in Florida is a court-supervised process for identifying and gathering the decedent's Florida probate assets, paying taxes, claims and expenses and distributing assets to the beneficiaries of the probate estate. The probate laws of Florida require that all wills must go through probate.  The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law establishes two main types of Florida probate administration:

a)      Formal Probate Administration, with which most of this information about probate is concerned, and includes probate estates that are in excess of $75,000 of value, or in which there are multiple creditors involved, and

b)      Summary Probate Administration, which involves an estate that is less than $75,000 in value, other than exempt assets (including the Florida homestead), and for which there are no outstanding unpaid creditor claims. 

The Florida law of probate also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."  (Back to Top of Page)

2.     WHAT ARE FLORIDA PROBATE ASSETS?

Generally, Florida probate law provides that probate assets are those assets titled in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death are subject to probate. For example:

·        a Florida bank account in the sole name of a decedent is a Florida probate asset that is subject to probate, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate in Florida;

·        a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and not subject to probate, but a policy payable to the decedent's estate is a Florida probate asset and is subject to probate;

·       Florida law provides that real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is exempt Florida homestead) but real estate in Florida held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and is not subject to probate;

·        property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive.  If you have a will in probate in Florida, it may be necessary to obtain legal advice and help with probate from a Florida probate lawyer or attorney to determine what constitutes Florida probate assets. (Back to Top of Page)

3. WHY IS FLORIDA PROBATE NECESSARY?

You must probate wills in a court of probate in Florida.  Florida Probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida Probate also serves to transfer assets from the decedent's individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. The Florida law of probate requires that all last wills and testaments must be probated, and provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament. (Back to Top of Page)

4. WHAT IS A LAST WILL AND TESTAMENT?

Do I need the original will?

A last will and testament is a written legal document, signed by the decedent and witnesses, that meets the formal requirements set forth by the Florida law of probate. A last will and testament usually designates a personal representative (sometimes called an Executor) to administer the Florida probate estate and names beneficiaries to receive Florida probate assets. A last will can also do other things, including establishing a testamentary trust and designating a trustee.

To the extent a last will and testament properly devises Florida probate assets and designates a personal representative, the last will and testament controls over the automatic provisions set forth under Florida probate law. In the absence of a valid last will, or if the probate estate is without a will because the last will fails in either respect, Florida probate law designates the beneficiaries and designates the way to select the personal representative for the Florida probate estate.  If you need Floida legal advice regarding a last will and testament or a will in probate, please contact your Jacksonville lawyer for probate and our probate law firm at 448-1969, or toll free at 888-492-2468, or email us at Info@TheColemanLawFirm.net.

If you prefer to prepare your own legal documents, have a simple to moderately complex estate and need only a basic will, we provide a service allowing you to prepare your own legal documents for a stated fixed price.  For wills and related estate planning documents, click here.  For other legal documents, including business forms, living trust forms, corporation and LLC forms, and may other Florida legal forms that can be prepared online, click here.
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5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?

What if there is no will?

Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found, pursuant to the Florida law of intestacy. If there is no last will and testament, or if the probate estate is without a will, the assets of the decedent will be distributed to the intestate heirs as follows:

·        Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida probate estate.

·        Surviving spouse and lineal descendants.

a)      If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the Florida probate estate plus one-half of the rest of the Florida probate estate, and the lineal descendants share the remaining half.

b)      If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the Florida probate assets and the lineal descendants share the remaining half.

·        No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the probate estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

·        No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida probate law provides for further disposition if the decedent is survived by none of these.

·        Exceptions to Above. The above provisions are subject to certain exceptions for Florida exempt homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida exempt homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida homestead, with the lineal descendants of the deceased spouse receiving the remainder inthere in the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida homestead outright.

One of the principal reasons for preparing a last will and testament is to properly provide for the distribution of assets to a descendant who is a minor.  As you can see, if one does not have a last will and testament, the Florida intestacy statute provides for the distribution of Florida probate assets to your lineal descendants.  If those descendants are minors (under 18 years of age), before any probate assets can be distributed from the Florida probate estate to the minor descendants, it is necessary for a Florida probate court supervised guardianship to be established on the assets that are being distributed to the minor beneficiary.  The Florida probate court will appoint someone to serve as the guardian of the property of the minor descendant(s).  The guardian’s responsibility will be to manage the assets for the benefit of the minor descendant and see that the assets are used properly.  However, it is necessary to get Florida probate court approval for all expenditures on behalf of the minor descendant, until the child reaches 18 years of age.  On the child’s 18th birthday, the probate court is required by Florida probate law to distribute all of the assets, lump sum, outright to the 18 year old child.

Through a last will and testament, you can provide for a testamentary trust that is designed to hold all of the assets for any descendant who is less than 18 years of age, and who is to be distributed assets from your probate estate.  The trustee of that trust is given instructions by you, in the legal document, regarding the uses of the funds, and the amount of access the beneficiary is allowed to have to the income or the principal from the trust assets that you have allocated for the minor child.  You can provide for the management of the trust assets for the benefit of your descendants for up to 360 years in Florida.  You determine when the descendant(s) have access to the assets, and the purposes for which funds can be withdrawn from the testamentary trust.  You determine the timing and amounts of the distributions of the trust assets to each descendant.  You can spread the distributions out in multiple distributions with several years in between each distribution.  Or, you can provide for lifetime trusts that will provide substantial asset protection from the beneficiary’s creditors, including divorcing spouses, general creditors and even the IRS. 

Through the use of such a testamentary trust, you can avoid the Florida law that requires all of the assets left to a minor descendant be distributed in a lump sum at age 18.  (Back to Top of Page)

6.  WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?

While there may be others, the following is a list of persons or entities often involved in the Florida probate process:

• Clerk of the Circuit Court , in Duval County, Florida for probate matters in Duval County, Florida.  The probate clerk's office is located at 330 E. Bay Street, Jacksonville, Florida.  For St. Johns County, the Clerk of the Court is located at 4010 Lewis Speedway, St. Augustine, Florida 32084 (See Question 7).  For Clay County, the Clerk of the Court is located at 825 N. Orange Avenue, Green Cove Springs, Florida 32043.  The Nassau County, Clerk of the Court is located at 76347 Veterans Way, Yulee, Florida 32097.

• Circuit Court (acting through a Circuit Court Probate Judge, See Question 8).

• Personal Representative or Executor (See Questions 9 through 11).

• Probate Lawyer or Attorney for the Personal Representative (See Question 12).

• Creditors or other Claimants (See Question 13).

• Internal Revenue Service (IRS) (See Question 14).

• Florida Department of Revenue (See Question 15).

• Surviving Spouse and Children (See Question 16).

• Other Beneficiaries of the Florida probate estate (See Question 17).

• Trustee of Revocable Living Trust (See Question 21).  (Back to Top of Page)

7. WHERE ARE FLORIDA PROBATE PAPERS FILED?

Probate court forms and papers are filed with the Clerk of the Circuit Court (which is the probate office for the Florida court of probate), usually for the county where the decedent lived.  In Jacksonville, Duval County, Florida, the probate clerk of the court of probate is located at the county courthouse at 330 East Bay Street, Jacksonville, Florida 32202.  A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The clerk assigns a file number and maintains a docket sheet which lists all probate forms, legal documents and papers filed with the clerk for that Florida probate administration. The assistance of a Florida probate lawyer or attorney is required by Florida law for filing a formal probate administration or a summary probate administration.  (Back to Top of Page)

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

A Circuit Court Judge presides over Florida court of probate proceedings. The Florida probate judge appoints the personal representative and issues "letters of administration," also referred to as "letters testamentary" or simply as "letters." This probate form shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate Judge also holds hearings when necessary and resolves all questions of Florida law raised during the administration of the probate estate by entering written directions called "orders." The probate timeline is established by the Florida probate rules.  (Back to Top of Page)

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

What is a personal representative (executor)?

The personal representative is the person or persons, bank or trust company appointed by the Florida probate court to be in charge of the administration of the Florida probate estate. The generic term "personal representative" has replaced such terms in probate as "executor, executrix, administrator and administratrix."

Upon a probate filing the personal representative in the probate of wills is directed by the Florida probate court to administer the probate estate pursuant to Florida probate code and the Florida probate rules. The personal representative is obligated to follow certain probate steps:

• Identify, gather, value and safeguard probate assets in probate.

• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the Florida probate estate.

• Serve a "notice of administration" on specific persons, giving information about the will in probate and the probate timeline for estate administration and giving notice of requirements to file probate forms with the Florida probate court for any objections relating to the Florida probate estate.

• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the probate timeline by which their claims must be filed with the Florida probate court against the Florida probate estate.

• Object to improper claims in probate and defend law suits brought against the Florida probate estate on such claims.

• Pay valid claims of the Florida probate estate.

• File tax returns for the Florida probate estate.

• Pay taxes of the Florida probate estate.

• Employ necessary probate professionals to assist in probate, including a Florida probate lawyer or attorney in a counsel of record capacity.

• Pay administrative expenses of the probate estate.

• Distribute statutory amounts or probate assets to the surviving spouse or family.

• Distribute assets to beneficiaries of the Florida probate estate.

• Close Florida probate administration.  (Back to Top of Page)

10. WHO CAN BE A PERSONAL REPRESENTATIVE OF THE FLORIDA PROBATE ESTATE?

Who can be appointed personal representative (executor)?

·        The personal representative could be an individual, multiple individuals, bank, or trust company, subject to certain restrictions as set forth in the Florida probate codes.

·        An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.

·        A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of a Florida probate estate.  (Back to Top of Page)

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

·        If the decedent left a valid last will and testaament, the designated personal representative nominated in the last will and testament has preference to serve.

·        If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the intestate probate estate.  (Back to Top of Page)

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?

Do I need an attorney to handle an estate?

In almost all instances the personal representative must be represented in the Florida court of probate by a Florida probate lawyer or attorney. Many legal issues arise concerning the law of probate, even in the simplest Florida probate estate administration.

The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the Florida law of probate, and represents the personal representative in Florida court of probate estate proceedings. The Florida probate lawyer or attorney for the personal representative is not the Florida probate lawyer or attorney for the beneficiaries.

A provision in a last will and testament mandating that a particular Florida probate lawyer, attorney, or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative.  (Back to Top of Page)

13. HOW ARE ESTATE CREDITORS HANDLED?

Prior to commencement of Florida probate proceedings, a creditor can file a caveat with the Florida probate court. Upon publication of notice to creditors a creditor or other claimant may file a probate form document called a "statement of claim" against the probate estate with the Clerk of the Circuit Court where the Florida probate estate is being administered. This probate form is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The Florida personal representative or any other interested person may file with the Florida court of probate an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.  A creditor, or interested person will find the help with probate from a Florida probate lawyer or attorney will be beneficial when filing with the Florida probate court caveats, statements of claim, objections to claims, and separate independent lawsuits.

The personal representative is required to use diligent efforts to give actual notice of the Florida probate and administration proceeding to "known or reasonably ascertainable" creditors of the probate estate, to afford them an opportunity to file claims against the Florida probate estate. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of.  (Back to Top of Page)

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?

For federal income tax purposes, death triggers two things. It ends the decedent's last income tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."

The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the estate:

·        Final Form 1040 income tax return, reporting income for the decedent's final tax year.

·        One or more Form 1041 income tax returns for the probate estate, reporting income for the probate estate.

·        Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.

·        Form 706 estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate, to determine whether an estate tax (commonly referred to as the “death tax.”) will be due for the probate estate to pay.

The personal representative may be required to file other returns on behalf of the Florida probate estate. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the Florida probate estate and may be personally liable for those taxes if not properly paid from the probate estate. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court.  (Back to Top of Page)

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the Florida probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the Florida probate inventory to determine whether the Florida probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For Florida probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal Florida probate administration.  (Back to Top of Page)

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a pre-marital or post-marital agreement to the contrary (commonly called a premarital or prenuptial agreement), a surviving spouse may have Florida exempt homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have exempt Florida homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate lawyer or attorney.  (Back to Top of Page)

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?

Under Florida probate law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.  (Back to Top of Page)

18. HOW LONG DOES FLORIDA PROBATE TAKE?

For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate estate administration are due within 12 months of issuance of letters of administration. This probate calendar period can be extended by the Florida court of probate, after notice to interested persons.

The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the Florida probate estate administration are due within 12 months from the date the tax return is due. This probate calendar date is usually extended by the Florida probate court because often the IRS' review and acceptance of the estate tax return are not completed within that period.

Florida probate estates that are not required to file a federal estate tax return and that do not involve probate litigation may often close in five or six months and the property in probate can be distributed.  (Back to Top of Page)

19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?

The personal representative, the Florida probate lawyer or attorney and other professionals whose services may be required in administering the Florida probate estate in the court of probate (such as appraisers and accountants) are entitled by Florida probate law to reasonable compensation for probate fees.

The probate fee for the personal representative is usually determined in one of five ways:

a)      as set forth in the last will and testament;

b)      as set forth in a contract between the personal representative of the Florida probate estate and the decedent;

c)      as agreed among the personal representative of the Florida probate estate and the persons who bear the impact of the probate fees;

d)      as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or,

e)      as determined by the Florida probate judge, applying Florida probate law.

Likewise, the probate fees for the Florida probate lawyer or attorney for the personal representative is usually determined (1) as agreed among the Florida probate lawyer or attorney, the personal representative of the Florida probate estate and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida law.  (Back to Top of Page)

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL PROBATE ADMINISTRATION?

Florida probate law provides for several alternate, abbreviated procedures other than Formal Probate Administration.

Summary Probate Administration is generally available under the Florida probate codes, if the value of the property in probate estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

Under Summary Probate Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Probate Administration by publication of notice in a local newspaper

Another alternative to Formal Probate Administration is "Disposition Without Administration."  This is available if the Florida probate estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal probate property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to record in Florida. This procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the Florida real estate as if the last will and testament had been admitted to Florida probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida.  (Back to Top of Page)

21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?

What is a Revocable Living Trust?

If the decedent created a revocable living trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's Florida probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court where the decedent lived, giving information concerning the settlor and trustee. The counsel of a Florida probate lawyer may help with probate and legal advice about the probate code and probate rules for the personal representative in this situation.  (Back to Top of Page)

However, a revocable living trust, if properly funded, provides the opportunity to avoid probate.  Properly funded means that all probatable assets are re-titled to the revocable living trust.  At the death of the grantor (settlor), the successor trustee has immediate access to the trust assets so that probate can be avoided, for all of its costs, delays and the public nature of a probate proceeding or guardianship.

The Florida probate lawyers and attorneys at The Coleman Law Firm have more than 30 years experience providing legal advice and working with personal representatives, beneficiaries, surviving spouses and the heirs to probate estates both with wills and no wills.  We also have significant experience working with creditors’ claims in probate administration in the Florida probate courts.  We recognize the need for efficient probate administration, and the importance of keeping our clients fully informed of each step in the Florida probate process and probate timelines.  We explain the Florida probate process to our clients and help them understand each step in the Florida probate process and why that step is necessary.

If you need the assistance of a Florida probate lawyer or attorney, please contact your Jacksonville lawyer for probate at The Coleman Law Firm so that we can help you with your Florida probate needs.  We are a participating attorney in the AARP Legal Services Network.

This material represents general legal information. Since Florida probate law is continually changing, some provisions in may be out of date. It is always best to consult an experienced Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular probate case.

The Jacksonville Florida probate, estate planning lawyers and elder law attorneys, asset protection attorneys, guardianship lawyers, Medicaid planning attorneys, and small business lawyers with the Coleman Law Firm offer their services as estate planning, probate, elder law, Medicaid planning, asset protection, small business, and guardianship lawyers and attorneys primarily in Northeast Florida including the following counties, towns, and cities:  Duval County - Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach; St. Johns County - St. Augustine, Ponte Vedra Beach, Nocatee, St. Augustine Beach; Clay County - Orange Park, Middleburg, Green Cove Springs; Nassau County - Amelia Island, Fernandina Beach, Yulee, Callahan; Flagler County - Flagler Beach, Palm Coast, Bunnell; Baker County - Macclenney, Glen St. Mary; Putnam County - Palatka, Interlachen; Columbia County - Lake City, Fort White; and in other parts of Florida as requested or necessary.  We are a participating attorney in the AARP Legal Services Network by GE.