Miami Lawyers, Florida Probate Attorneys,Asset Protection
Florida Probate Law Attorneys for Miami Dade County
Information about probate law and probate lawyers in Miami, Florida, the Florida probate process, and how to probate a will in Miami, Florida. The Florida probate rules and procedures set forth in this information will help you understand the probate process as it is applied in Miami-Dade County, Florida.
Frequently Asked Questions about the Florida probate process.
1. WHAT IS PROBATE IN FLORIDA?
2. WHAT ARE FLORIDA PROBATE ASSETS?
3. WHY IS FLORIDA PROBATE NECESSARY?
4. WHAT IS A LAST WILL AND TESTAMENT?
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO WILL AND TESTAMENT?
6. WHO IS INVOLVED IN THE PROBATE PROCESS IN FLORIDA?
7. WHERE ARE PROBATE DOCUMENTS AND PAPERS FILED WITH THE FLORIDA PROBATE COURT?
8. WHO SUPERVISES THE FLORIDA PROBATE PROCESS AND ADMINISTRATION IN MIAMI-DADE COUNTY, FLORIDA?
9. WHAT IS A PERSONAL REPRESENTATIVE (EXECUTOR), AND WHAT DOES THE PERSONAL REPRESENTATIVE DO IN A FLORIDA PROBATE?
10. WHO CAN BE A PERSONAL REPRESENTATIVE (EXECUTOR) FOR A FLORIDA PROBATE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE FOR A FLORIDA PROBATE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY FOR A PROBATE IN MIAMI-DADE COUNTY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED IN A FLORIDA PROBATE?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED IN A PROBATE MATTER?
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 THE PROBATE PROCESS TAKE IN FLORIDA?
19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION IN COURTS OF PROBATE?
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
1. WHAT IS PROBATE IN FLORIDA?
Probate is a court-supervised process for identifying and gathering the decedent's assets in probate, paying taxes, claims and expenses and distributing assets to beneficiaries of the Florida probate estate. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
1. Formal Administration, with which most of this article deals. Formal probate administration involves estates that have assets which total more than $75,000 in value, or have creditor claims that must be resolved in the Miami, Florida probate court, or if there is a will challenge or a probate with a will contest, or there is estate litigation, that must be heard by the Florida probate judge.
2. Summary Administration involves an estate with less than $75,000 of "non-exempt" assets, or the deceased died more than two years prior to filing the summary probate procedure. "Non-exempt" assets are those assets that under Florida probate law are not subject to the claims of the creditors of the probate estate.
Florida law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration." (Back to the Top)
2. WHAT ARE FLORIDA PROBATE ASSETS?
Generally, Florida probate assets are those assets that are 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 and no beneficiary designation. Under the Florida law of probate for example:
• a bank account in the sole name of a decedent is a Florida probate asset and 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 controlled by the decedent's last will and testament, and therefore is not subject to probate;
• 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 subject to probate administration in the court of probate;
• 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) and is subject to probate, but real estate 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 regardless of what disposition of the asset may be contained in the decedent's last will and testament.
4. WHAT IS A LAST WILL AND TESTAMENT?
A last will and testament is a legal document, in writing, signed by the dcedent and witnesses, which meets formal requirements set forth by
To the extent a last will and testament properly devises probate assets and designates a personal representative pursuant to the Florida law of probate, the last will and testament controls over the automatic provisions set forth under
(Back to the Top)
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?
Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate estate.
• Surviving spouse and lineal descendants.
1. 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 probate estate plus one-half of the remaining probate estate, and the lineal descendants share the remaining half of the Florida probate estate.
2. 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 in probate assets and the lineal descendants share the remaining half of the in probate assets.
• 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 equal 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 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 intestacy 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 exempt Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida exempt homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright.
(Back to the Top)
6. WHO IS INVOLVED IN THE PROBATE PROCESS IN MIAMI FLORIDA?
While there may be others, the following is a list of persons or entities often involved with filing probate in the Florida probate process:
7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA?
Probate documents, probate court forms and papers are filed with the Clerk of the Circuit Court, for Miami-Dade County, at the probate office located at 73 W. Flagler Street, Miami, Florida, or with the probate clerk of the court of probate for the Florida county where the decedent lived. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration to probate the will in Florida. The probate clerk assigns a file number and maintains a docket sheet which lists all probate court forms and other papers filed with the probate clerk, and the probate records for that probate administration. (Back to the Top)
8. WHO SUPERVISES THE MIAMI FLORIDA PROBATE ADMINISTRATION?
Upon the filing of a probate case, a Miami-Dade Circuit Court Judge is assigned as the probate judge that presides over the Florida probate proceedings in the Miami-Dade County court of probate. The Miami probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters," or "letters testamentary." This probate document shows to the world the legal authority of the personal representative to act on behalf of the Florida probate estate. The Florida probate Judge also holds hearings in the probate office when necessary and resolves all questions of probate law raised during the administration of the estate by entering written directions called "orders." (Back to the Top)
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
Under the law of probate, the personal representative is the person, bank or trust company appointed by the probate court to be in charge of the administration of the Florida probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."
The personal representative is directed by the probate court to administer the probate estate pursuant to
• Identify, gather, value and safeguard probate assets during the probate process and prepare a probate inventory of the probate assets that must be filed with the Florida probate court, and distributed to any interested person of the estate.
• Publish a "notice to creditors" in a local newspaper, giving notice to creditors or others with claims against the probate estate, and file other legal documents and papers relating to the Florida probate estate.
• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file with the Florida probate court any objections relating to the probate estate within the applicable probate timeline.
• Conduct a diligent probate 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.
• Object to improper claims and defend law suits brought on such claims against the Florida probate estate through what is called estate litigation.
• Pay valid claims of the Miami, Florida probate estate as defined by the Florida law of probate.
• File estate tax and income tax returns for the Florida probate estate.
• Pay estates taxes or other taxes owed by the Florida probate estate.
• Employ necessary probate professionals to assist, including a Florida probate attorney or lawyer.
• Pay administrative expenses for the probate in Florida.
• Distribute statutory amounts or assets to the surviving spouse or family as provided by the Florida law of probate.
• Distribute assets to beneficiaries of the Florida probate estate.
• Close probate administration with the Florida court of probate. (Back to the Top)
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A MIAMI FLORIDA PROBATE ATTORNEY?
In almost all instances in the probate process the personal representative must be represented by a
The Florida probate attorney for the personal representative advises the personal representative on rights and duties of the executor under the Florida probate law, the probate court forms that must be filed in probate, and represents the personal representative in probate estate proceedings. An experienced probate lawyer can be invaluable to the personal representative of the Florida probate estate. The probate attorney for the personal representative is not the probate attorney for the beneficiaries of the probate estate. The beneficiaries must select their own personal probate lawyer if there is any kind of challenge by the beneficiary, or if there are problems associated with the probate administration.
A provision in a last will and testament mandating that a particular probate attorney or Florida law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative. (Back to the Top)
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of Florida probate proceedings to probate a will, the Florida law of probate allows a creditor to file a caveat with the Florida court of probate. Upon publication of a notice to creditors a creditor or other claimant may file a probate court document called a "statement of claim" against the probate estate with the probate office of the Clerk of the Circuit Court in Miami-Dade County or in the court of probate where the probate estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month probate timeline is often referred to as the "non-claim period." The personal representative or any other interested person in probate may file an objection to the statement of claim, after which the claimant must file in the Florida probate court a separate independent lawsuit to pursue the claim.
The personal representative is required by the Florida law of probate to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. 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 the Top)
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."
The personal representative in probate may be required to file the following tax returns, depending on income of the decedent, income of the 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 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.
Florida public policy as expressed in the Florida law of probate protects the surviving spouse and certain surviving children from total disinheritance. Absent a pre-marital or post marital agreement to the contrary, the Florida probate code provides that 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 the Top)
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under the
(Back to the Top)
18. HOW LONG DOES PROBATE IN FLORIDA TAKE?
For Florida probate estates not required to file a federal estate tax return, the final accounting, and other probate court forms and papers to close the probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate court, after notice to interested persons.
The federal estate tax return is initially due nine months after death and may be extended by the IRS for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting, probate court forms, and papers to close the Florida probate administration are due within 12 months from the date the federal estate tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the federal estate tax return are not completed within that probate timeline.
Estates that are not required to file a federal estate tax return and that do not involve probate or estate litigation may often close in five or six months. (Back to the Top)
19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?
The personal representative, the Florida probate attorney and other probate professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by the Florida probate code to reasonable compensation.
The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament in probate; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fees; (4) as the amount presumed to be reasonable as calculated under Florida probate code if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.
Likewise, the probate fees for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the probate fee, (2) as the amount presumed to be reasonable calculated under Florida probate code, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying the Florida law of probate. (Back to the Top)
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Summary Administration is generally available if the value of the probate estate subject to probate adminstration in
Under Summary Administration, the Florida probate code provides that the persons who receive the estate assets remain liable for claims against the decedent for two years after the date of death. This probate timeline may be reduced in Summary Administration by publication of notice in a local newspaper.
Another alternative to Formal Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by Florida law and the Florida Constitution) and non-exempt personal 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
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
If the decedent created a revocable living trust with the assistance of a Florida estate planning attorney, in certain circumstances under the Florida law of probate, the trustee may be required to pay expenses of administration of the decedent's 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 probate court in Miami-Dade County, or where the decedent lived, giving information concerning the settlor and trustee. (Back to the Top)
This material represents general legal information about Florida Probate law. Since the Florida law of probate is continually changing, some provisions may be out of date. It is always best to consult an Florida probate attorney about your legal rights and responsibilities regarding your particular Miami probate matter.
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