What Everyone Should Know About Probate In Florida
It is common to hear people talk about their desire to find ways to avoid probate. Many will give gifts to their children, set up trusts and engage in creative business deals. In various ways, they attempt to protect their assets and the beneficiaries of their estates from the processes of probate. Minimizing taxes is one concern; avoiding complications is another goal for many. They may be unaware of the benefits of probate for many purposes.
There may be good reasons to try to avoid probate. However, it is important to remember that not all assets in an estate will necessarily end up where intended. There may be income tax refunds, paid judgments and other assets that come to the estate near the end of life that don’t fall into trusts or other protected repositories of wealth. For these reasons, a pour-over will can be an important document – and probate can be not only necessary but also very helpful in such cases.
Benefits Of Probate And The Options Available To You
Some of the benefits of our efficient services and of probate include:
- Clearing real estate titles as necessary to pass real property on after death
- Settling creditors’ claims against an estate
- Settling the estate of someone killed in a traffic accident or any other kind of accident, which may bring new sources of income to the estate
- Completing distribution of assets not protected by trusts
Remember, even if you try to avoid probate, there is no guarantee that you will be completely successful. At our law firm, we help clients get the greatest benefits from probate while minimizing unexpected obstacles (such as will contests) that may arise and stand in the way of the complete settling of an estate.
Disposition Of Property Without Administration
If a loved one has passed, the last thing you need to deal with is the complex and often frustrating process of probate. Let an experienced probate attorney from Korshak & Associates, P.A., provide the knowledgeable guidance you require at this difficult time.
One of the ways that we can guide your case efficiently through the probate process is by determining the type of administration that is required. Many people are unaware that an informal probate process may be available in their case.
A Simpler Form Of Probate Administration
Disposition of property without administration is the most basic type of probate administration that is available in Florida. Small estates may be eligible for this type of administration if the estate consists of:
- Personal property that is exempt from probate under Florida law
- Personal property that is exempt from creditors’ claims under the Constitution of the State of Florida
- Nonexempt personal property that does not exceed the amount of specified funeral expenses and reasonable and necessary medical and hospital expenses that were accrued by the decedent shortly before their passing [Florida Statute 735.301]
If your loved one passed away and left a relatively small estate consisting of personal property and other limited assets, it may be eligible for this simpler form of probate administration. Our attorneys can help you determine which type of administration is required for the probate of a loved one’s estate.
Helping You Navigate The Complexities Of Intestate Administration
If a loved one dies without leaving a will, it is referred to as intestacy. In these cases, the process of dividing and distributing assets, which follows the death, is called intestate administration.
Each family will face a different set of circumstances in intestate administration. Sometimes a loved one did leave a will, but it did not fully designate beneficiaries for all assets. Many times, there will be no surviving spouse, but there will be multiple adult children. In other instances, there may be a surviving second spouse and adult children from a first marriage. In each of these cases, who is entitled to what?
Our lawyers have more than 60 combined years of legal experience, and they have helped a significant number of clients navigate the probate process and intestate administration. They will ensure that you understand your legal entitlements and how to exercise your rights.
Why Hire A Probate Lawyer?
Many people believe that they should be able to settle their loved ones’ estates without the need for an attorney. Others underestimate the importance and role of an attorney through the probate and estate process. Too many people make mistakes, omit necessary steps or get tangled up in unexpected legal problems because they fail to work closely with an experienced attorney after the death of a family member.
At Korshak & Associates, P.A., we can assist you through all manner of probate concerns. We will work hard to:
- Ensure that personal representatives understand and fulfill their fiduciary duty
- Advise personal representatives on proper ways of distributing property
- Guide families through the often overwhelming paperwork involved in closing an estate
- Assist and represent clients when complications arise, such as real estate title problems or receipt of creditors’ claims
- Expedite the process of settling an estate and distributing assets to beneficiaries or heirs
If there is a will, a probate attorney can help personal representatives carry out the will according to the deceased person’s wishes and in accordance with all legal requirements.
If there is not a will, a probate lawyer can help ensure that a family takes action promptly before a creditor swoops in and forces settlement of an estate without the family’s cooperation and involvement.
Estate Administration: Nonresident Decedents
Estate administration for nonresident decedents (also known as “ancillary administration”) is very common in Florida. Many people have investment properties and own real estate throughout the state. When a person dies with real property in Florida, they must go through the probate process in their home state and in Florida.
The process for estate administration for nonresidents is very specific. Paperwork must be worded and submitted properly in order to avoid challenges that require additional legal action. Attorney Lee Karina Dani has significant experience working with out-of-state clients and will walk you through each step of the process. She can file paperwork efficiently and make certain that challenges are avoided in the future.
FAQ About Probate
For most people, the concepts of estate planning, wills and the probate process can be extremely complicated. In fact, many people avoid establishing their estate plans because they feel confused and anxious about the process.
At Korshak & Associates, P.A., our attorneys have more than 60 combined years of experience with these matters. Representing clients throughout the Orlando areas of Florida, they understand the confusion you may be experiencing when it comes to probate.
We have compiled some frequently asked questions about Florida’s probate process.
What is probate in Florida?
Probate is the process by which an estate is administered. In Florida, when someone dies with certain types of assets, those assets go through probate. The court oversees the probate process, which involves distributing certain assets of a deceased person to the appropriate parties.
What is the probate process?
In Florida, there are different potential processes for probate. The two most common are formal administration and summary administration. Formal administration is, as the name suggests, the more formal of the two processes. In formal administration, a personal representative is named and given letters of administration, and that person distributes the assets appropriately.
Generally, summary administration (anchor) occurs when nonexempt assets are less than $75,000 or at least two years have passed since the death. This is a much quicker and simpler process than formal administration. Summary administration can also include disposition without administration for extremely small estates. Talk with an experienced attorney to learn more.
What if I have been named a personal representative?
If you have been named a personal representative, you will be responsible for gathering the estate’s assets and paying the estate’s creditors and the decedent’s beneficiaries. You should seek the assistance of counsel to make sure these tasks are done correctly.
Can I go through the probate process myself?
Generally, no. Other than a few clearly defined exceptions, legal representation from a licensed probate attorney is required in the process. Even in the cases in which a lawyer is not required, it is a good idea to work with a lawyer who can protect your interests and help you through the process.
Reimbursement Of Attorney Fees In Florida For Probate Cases
Concerns about money often prevent executors, beneficiaries and others from getting the help they need. Fortunately, financial reimbursements are often available in probate or guardianship cases.
Attorney fees associated with probating assets and/or establishing a guardianship for a minor child or the decedent’s property or money is often considered an estate expense and may be eligible for reimbursement in Florida at the end of the administration period.
Determining that a deceased person’s home was in Florida – and that it was their primary residence – can be a critical piece of estate administration in this state. The value of a person’s primary residence is protected through the homestead exemption spelled out in Florida laws. This means that creditors will not be able to seize this real estate to pay off the debts of a deceased person. This is one of the benefits of a homestead exemption.
The processes associated with determining whether a Florida homestead exemption applies can be complicated for nonlawyers to deal with in most cases. Working with an experienced probate attorney is essential for most personal representatives (executors).
Understanding Summary Probate Administration
Summary administration is the type of probate process that is typically used in Florida when an individual has less than $75,000 in assets (excluding homestead). This process is also used if the person has been deceased for more than two years.
This probate administration is very straightforward and much shorter than the formal administration process. While this process is straightforward, it is important to work with a lawyer who understands each of the steps and the differences in the probate processes.
A Quick Overview Of Formal Probate Administration
The formal administration process takes a minimum of six months to complete. For this process, there must be a personal representative (typically appointed by the court) and there may be multiple beneficiaries. There is a significant amount of paperwork involved, including issues involving creditors. Your lawyer must have a firm understanding of the process, understand when to anticipate challenges and know how to overcome them with ease and efficiency.
Probate Litigation Attorneys Handle A Range Of Estate Disputes
Many varieties of litigation involve the settling of estates. We have extensive, in-depth experience representing clients in estate litigation matters, including:
- Will contests, including disputes as to which will is valid when more than one exists
- Challenges to the validity of wills on the basis of undue influence
- Challenges to the validity of wills on the basis of lack of capacity
- Challenges to the validity of charitable trusts
- Mortgage-related claims, creditor claims against estates, and notice and priority claim disputes
- Government claims, primarily tax disputes involving estates
- Tax liens and other real estate liens
- Allegations of breach of fiduciary duty by personal representatives (executors) and trustees
- Rejection of allowance of claims
- Probate litigation and litigation having to do with trusts
If you believe there is reason to challenge a will or encounter problems such as tax liens as you attempt to distribute assets after the death of a loved one, you should consult with an experienced probate law attorney. Hiring a probate lawyer is likely to be the most expedient way to resolve disputes. If your matter requires litigation, the Orlando probate litigation attorneys at Korshak & Associates, P.A., are prepared to guide you through the most effective way to resolve the legal problem impeding the administration of an estate.
Understanding The Responsibilities Of A Fiduciary
Personal representatives, trustees, guardians and conservators are all considered fiduciaries under estate laws. As such, each has a range of important responsibilities when it comes to protecting estate assets or protecting the best interests of beneficiaries and wards.
Individuals who serve in these trusted positions must adhere to the following duties:
- Protect the assets of the estate
- Act impartially to the beneficiaries
- Be loyal to any wards
- Avoid conflicts of interest
- Refrain from using funds for personal use
- Keep accurate and up-to-date financial accountings
- Perform duties in a timely and proper manner
When a fiduciary does not act in accordance with their legal obligations, estates, property and people may be significantly harmed. Many times, a clear violation has occurred. In other cases, the complexities of the matter are not as straightforward. But regardless of the specific details of the allegation, both
Explore Your Probate Options With An Experienced Attorney
Discuss your probate needs with one of our central Florida lawyers. Contact Korshak & Associates in Orlando, Florida. Our offices are conveniently located near major roads and offer free parking. We accept cash, checks and major credit cards. To schedule a consultation, call 888-681-4389. You may also contact us by email. Se habla español.