What Is A Probate Lawyer In Florida?
They play a crucial role in the Florida probate process, which includes:
- validating the decedent’s will
- identifying and valuing assets
- settling outstanding debts and taxes
- distributing the remaining assets to the heirs or beneficiaries
Their knowledge and expertise ensure that the estate administration process is carried out:
- in compliance with the law
Let’s talk about what to expect from a probate attorney in Florida.
What Does A Florida Probate Lawyer Do?
A Florida probate lawyer plays a critical role in navigating the complex probate process in the state of Florida.
Their expertise in the field ensures that the personal representative (also known as an executor or administrator of an estate) can fulfill their responsibilities effectively and efficiently.
This article will discuss the specific roles of a probate lawyer in Florida, including:
- legal guidance and representation
- resolving creditor claims
- preparing and filing documents
Legal Guidance And Representation
A probate lawyer in Florida plays an essential role by providing legal guidance and representation.
They assist the personal representative of an estate in understanding and carrying out their fiduciary duties effectively throughout the probate process.
Advising The Personal Representative
A Florida probate lawyer:
- helps the personal representative understand their responsibilities
- advises them on the necessary steps to take
- guides them through the entire probate process
A Florida probate law firm will help you with:
- identifying and gathering assets
- paying debts and taxes
- distributing assets to beneficiaries per the will or to the heirs according to intestate succession laws
Representing The Estate In Court Proceedings
A Florida estate attorney represents the estate in any court proceedings related to the probate process.
This includes things like:
- hearings for appointing a personal representative
- approving the distribution of assets
- assisting with the claims of creditors
Ensuring Compliance With Probate Laws And Court Rules
A Florida probate law firm ensures that the estate’s administration complies with all applicable Florida probate laws and court rules.
This helps to avoid potential legal issues, delays, and additional costs.
Resolving Creditor Claims
Another important role of a probate lawyer is to help settle the debts of the decedent and resolve creditors claims filed during the probate process.
Notifying Creditors of the Decedent
A Florida probate lawyer can assist with properly noticing the creditors of the decedent.
- publishing the required notice with a local newspaper
- sending the required notice to all known or reasonably ascertainable creditors of the decedent
Our probate and estate lawyers will assist the personal representative with carrying out the legal requirements of noticing creditors of the estate.
Handling Creditor Claims
A Florida probate lawyer will receive all claims of creditors legally filed with the court and advise the personal representative of their options.
- objecting to claims
- negotiating claims
- satisfying claims
An experienced Florida probate lawyer ensures that:
- only valid claims are paid
- that the estate’s assets are protected
A Florida probate attorney keeps the personal representative on track with fulfilling their legal duties with regard to claims of the estate.
Preparing And Filing Documents
A Florida probate lawyer is also responsible for preparing and filing necessary legal documents throughout the probate process.
Drafting Legal Documents
A Florida probate attorney drafts various legal documents, such as:
- statement regarding creditors
Your probate attorney will also ensure that the documents are:
- in compliance with Florida probate laws and court rules
Submitting Required Filings To The Court
A Florida probate lawyer is responsible for submitting all required filings to the appropriate probate court in a timely manner.
This includes things like:
- filing the initial petition to open the estate
- submitting an inventory of assets
- providing the court with a statement regarding creditors
- closing and discharge documents
Ensuring Accurate And Timely Completion Of Paperwork
Finally, a Florida probate lawyer helps ensure that all paperwork related to the probate process is:
- filled out accurately
- submitted within the required timeframes
This helps to avoid delays, additional costs, and potential legal issues.
Florida Probate Law
Florida probate law governs the process of administering a deceased person’s estate.
The probate process in Florida involves:
- validating a will, appointing a personal representative
- identifying and gathering assets
- paying debts and taxes
- distributing the remaining assets to beneficiaries and heirs
The probate process can vary depending on whether the deceased person:
- left a will (this is testate)
- did not leave a will (this is intestate)
In the Florida probate process:
- probate courts handle the administration of estates
- probate lawyers can provide valuable assistance throughout the process
Read More: The Cost Of Probate in Florida
What Is The Florida Probate Process?
The probate process in Florida starts by:
- filing a petition with the probate court
- depositing the decedent’s original will
- depositing a death certificate
- notifying heirs and creditors
- appointing a personal representative
Next, the personal representative:
At this point, the remaining estate can go to the beneficiaries or heirs.
The personal representative will:
- create a distribution plan
- obtain consent from the beneficiaries or heirs and/or court approval
- transfer assets to the beneficiaries
The Florida probate process involves several steps to settle the estate of a deceased person:
- Opening The Estate: File a petition with the probate court to open the estate. Notify heirs and creditors, and appoint a personal representative.
- Inventory And Appraisal: The personal representative identifies and gathers estate assets, obtains professional appraisals when necessary, and submits the inventory to the court.
- Paying Debts And Taxes: The personal representative identifies and notifies creditors of the estate, pays valid claims, files estate tax returns, and pays any taxes due.
- Distribution Of Assets: The personal representative prepares a distribution plan, obtains consent from the beneficiaries or heirs and/or court approval, and transfers assets to the beneficiaries as per the will or to the heirs in accordance with the Florida intestacy laws if there is no will.
Opening the Estate
The process of opening an estate in Florida begins when someone passes away.
It involves filing a petition with the probate court to admit the will (if there is one) and depositing a death certificate.
An Oath must be filed prior to the court appointing a personal representative.
The court then reviews the petition and makes a decision regarding the will’s validity and whether or not to admit the will, and appointment of a personal representative.
Once appointed, the personal representative notifies all heirs, beneficiaries, and potential creditors.
A Florida probate attorney assists the personal representative with publishing a proper notice to creditors in a local newspaper.
Inventory and Appraisal
During the probate process, the personal representative is responsible for identifying and gathering all estate assets.
This includes real estate, personal property, bank accounts, investments, and other valuable items.
A detailed inventory of these assets, along with their approximate values, must be created.
Professional appraisals may be necessary for certain assets, such as real estate or valuable personal property.
This determines their fair market value and ensures accurate valuation for distribution and tax purposes.
Finally, the personal representative must submit the completed inventory to the court.
This ensures all assets are accounted for throughout the probate process.
Paying Debts and Taxes
During the probate process, the personal representative is responsible for addressing the estate’s debts and taxes.
This includes identifying and notifying creditors, who then have a specified period to file claims.
After the claims period, the personal representative reviews and pays valid claims using the estate’s assets.
If there are insufficient assets, payments must be prioritized according to Florida law.
Additionally, the personal representative:
- must file required estate tax returns
- pay any taxes due, if any
Distribution of Assets
After settling all debts and taxes, the personal representative can distribute the remaining assets to beneficiaries in accordance with the will or heirs at law.
The personal representative must obtain consent from the beneficiaries or heirs and/or court approval for the plan for distribution to ensure adherence to the will or Florida law.
FAQs About Hiring Florida Probate Lawyers
Here are questions clients have for our probate law attorneys.
How Much Does It Cost To Get A Will Probated In Florida?
The cost to probate a will in Florida varies depending on several factors, like:
- the size and complexity of the estate
- whether the will was validly executed in accordance with state laws
- whether there is real property involved
- probate attorney fees
- probate court costs
Some common expenses associated with probate in Florida include:
- Court Filing Fees: These fees depend on the type of probate proceeding and are typically several hundred dollars.
- Publication Fees: Florida probate law requires publication of a notice to creditors in a local newspaper. Publication fees are several hundred dollars and vary by publication.
- Appraisal Fees: If the estate includes assets that need a professional valuation, appraisal fees may apply. These fees vary based on the type and value of the assets.
- Bond Premiums: Personal representatives may be required to post a bond to protect the estate from potential mismanagement. Bond premiums depend on the estate’s value and the creditworthiness of the executor or administrator.
- Attorney Fees: Fees can vary depending on the estate lawyer’s experience, the estate’s complexity, and whether the lawyer charges hourly rates, flat fees, or a percentage of the estate’s value. Small estates are typically handled on a flat fee basis, while attorneys’ fees for larger estates may be paid in accordance with the statutory fee schedule for reasonable fees, typically 1-3% of the value of the estate.
- Miscellaneous Expenses: Additional costs may include postage, certified copies of court documents, and other administrative expenses.
Do You Need A Lawyer For Probate In Florida?
In Florida, the personal representative of the estate is legally required to have a lawyer for probate.
Even if a lawyer is not required, i.e. smaller estates where no personal representative is appointed, hiring a probate attorney can be beneficial, particularly when there is real property involved, including exempt homestead property.
A Florida probate lawyer:
- provides guidance
- ensures compliance with Florida probate laws
- represents the estate in court proceedings
- helps handle creditor claims filed against the estate
- prepares necessary legal documents
Personal representatives nominated in the will or with priority to serve may want to determine whether the estate qualifies for a summary administration or full formal administration.
Legal assistance can streamline the process and minimize potential issues.
How Long Do You Have To File Probate After Death In Florida?
In Florida, there is no strict deadline to file probate after a person’s death.
However, it is generally advisable to start the probate process as soon as possible.
This ensures the efficient administration of the estate.
Personal representatives should file the petition for probate with the appropriate probate court.
This needs to get done within a reasonable time after becoming aware of their nomination in the will.
Beginning the probate process promptly helps:
- protect the estate’s assets
- address creditors’ claims
- distribute the remaining assets to beneficiaries in a timely manner
Read More: Handling your Loved Ones Assets During and after Probate Court
What Assets Are Exempt From Probate In Florida?
In Florida, several types of assets are exempt from probate.
This means they can be transferred directly to the beneficiaries without going through the probate process.
These assets include:
- Jointly Owned Property: Real estate, bank accounts, or other assets held in joint tenancy with the right of survivorship automatically pass to the surviving owner(s).
- Payable-On-Death (POD) Accounts: Financial accounts, such as bank accounts or investment accounts, with designated beneficiaries will be transferred directly to the beneficiaries upon the account holder’s death.
- Transfer-On-Death (TOD): Stocks, bonds, or other securities registered with a transfer-on-death designation pass directly to the named beneficiaries.
- Life Insurance Proceeds: Life insurance policies with named beneficiaries will be paid directly to the beneficiaries, bypassing probate.
- Retirement Accounts: IRAs, 401(k)s, and other retirement accounts with designated beneficiaries transfer directly to the beneficiaries without probate.
- Assets Held In A Living Trust: Property and assets held in a revocable living trust are managed and distributed by the trustee according to the trust’s terms, avoiding probate in Florida.
Read More: What is Probate, What Assets Go Through Probate, and What Doesn’t?
What Happens If You Don’t Probate A Will In Florida?
If you don’t probate a will in Florida, several consequences may arise:
- Delayed Asset Distribution: Beneficiaries may not receive their inheritance in a timely manner, as the assets cannot be legally transferred without probate.
- Potential Disputes: Without a Florida probate, there is no legal framework to resolve disputes among beneficiaries or challenges to the will, which may lead to conflicts.
- Unresolved Debts And Taxes: The estate’s debts and taxes may not be paid, which can result in penalties, interest, or legal actions against the estate.
- Missed Deadlines: Florida probate law requires that a will be submitted for probate within a certain time frame.
- Legal Liability: The personal representative may face legal liability if they fail to probate the will and fulfill their fiduciary duties.
Read More: What Does “Probate A Will” Mean?
Do You Have To Go Through Probate If You Have A Will In Florida?
In most cases, yes. In Florida, having a will does not automatically exempt an estate from the probate process.
A Florida probate is generally required to:
- validate the will
- appoint a personal representative
- ensure the proper distribution of assets to beneficiaries or heirs
But, some estates with minimal assets or those that primarily consist of assets can pass outside of probate.
These include things like:
- jointly-owned property
- assets with designated beneficiaries
- assets held in a trust
They may not need to go through the full probate process.
In some cases, Florida offers simplified probate procedures for smaller estates referred to as a summary administration.
Read More: What is Probate? Examples
Who Inherits When There Is No Will In Florida?
When there is no will in Florida, the estate is considered intestate.
Intestate estates are distributed according to Florida’s intestate succession laws.
The distribution follows a hierarchy, as outlined below:
- Spouse: If the deceased had a spouse but no children, the spouse inherits the entire estate. If the deceased had a spouse and children, all of whom are also children of the surviving spouse, the spouse inherits the entire estate. If the deceased had a spouse and children, at least one of whom is not the child of the surviving spouse, the spouse and children share the estate equally.
- Children: If there is no surviving spouse, the children inherit the entire estate, divided equally among them.
- Parents: If there is no surviving spouse or children, the deceased’s parents inherit the estate, shared equally if both are alive.
- Siblings: If the deceased has no surviving spouse, children, or parents, the siblings inherit the estate, and the descendants of deceased brothers and sisters, divided equally among them.
- More Distant Relatives: 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. See Florida Statute 732.103.
- Escheat To The State: If no relatives can be found, the deceased’s assets ultimately escheat, or revert, to the state of Florida.
Hire A Probate Attorney In Florida
If you want help from a probate law firm, schedule an appointment or fill out the form below.
At Loughlin Law, P.A., we understand the importance of:
- protecting your hard-earned assets
- ensuring your family’s future
- not losing everything to creditors and lawsuits
- properly (and legally) distributing assets
We can only accommodate a limited number of clients each month.
So don’t miss your opportunity to work with our probate lawyers.
Benefits of our probate services:
- Tailored solutions to fit your unique needs and goals
- Compassionate guidance in navigating the complex probate process
- Efficient and friendly service coupled with exceptional communication so you know the status of your Florida probate at any given time
Avoid the pitfalls of inadequate probate strategies:
- Creditors seizing assets
- Lawsuits and foreclosure jeopardizing your family’s inheritance
- Family disputes
- Costly and time-consuming probate processes