An overview of how probate works in Florida

Posted on September 25, 2012 by admin

I spend a fair amount of time meeting with potential clients explaining how the probate process works in Florida.
And I realized, I don’t actually have a post on the Florida probate process.
So, here it is; a very short overview of Probate in Florida.
When someone dies, and leaves property, there are three ways property can pass at death: by operation of law, where two or more people own the property as Joint tenants with Right of Survivorship, by beneficiary designation, sometimes called Pay On Death or POD, and by probate.
If two or more people own property as Joint Tenants with Right of Survivorship, when one of them dies their name comes off the ownership.  The property automatically passes to the survivor.
If someone has named a beneficiary for an account, once the financial institution is given the death certificate, they will pay or transfer that money over to the people named as beneficiaries.
But if property doesn’t pass by either of these, you are looking at a probate.
Essentially, what happens is the survivors have to consult with a lawyer who will determine if the estate is testate (has a valid will) or is intestate (no will). Then, the lawyer needs to find out what the approximate value of the estate is and whether the estate is likely to owe any money.  If the value of the estate is more than a certain amount, or if there are significant bills, then the lawyer will probably recommend “full administration”, where a Personal Representative, which is what Florida calls an Executor, will need to be appointed. The Personal representative is responsible for gathering the assets of the estate, collecting what needs to be collected, working with the lawyer to file paperwork and notify people who need to be notified.  Creditors, people who are owed money or might be owed money, need to be told the estate is opened and that they need to put in a claim.  The estate is advertised in the local newspaper, and people who stand to inherit something are notified of the probate as well.  The personal representative files an inventory, listing the property and estimated values.  The personal representative handles the sale of any property that needs to be sold, and towards the end of the probate, the personal representative is responsible for seeing that creditors get paid to the extent that there are available assets in the estate.  Depending on the exact facts, there may be additional work that needs to be done; if there is a home, there will probably be a homestead petition; depending on the property and who the survivors are, there may be a petition to exempt certain property, meaning some property will be not available to pay creditors but will go directly to the heirs. If there is a surviving spouse and a will, the surviving spouse may want to file an elective share petition; and if there is a  surviving spouse or minor children, a family allowance, to help support the family, may be appropriate.  Depending on the case, there may be other things to do; file tax returns, file lawsuits or defend lawsuits. Each case is different; what needs to be done depends entirely on the facts of the case.
All of this is overseen by a judge.  At the end of the probate, after the paperwork has been filed, then the money left in the estate is split between the heirs or beneficiaries; who gets what depends, once again, on the facts of the case; whether there is a will, and the exact relationship between the deceased person and the heirs or beneficiaries.
If the estate is small, and if there are not significant creditors, then a Summary Administration may be appropriate; this is sort of a simplified probate; essentially what happens is paperwork is filed saying the person is dead, they left this property, and this is who the property goes to; the judge signs paperwork confirming this, and then the property is transferred directly to the people who get the property.  This is a little simpler and somewhat cheaper than a Full Administration but is not always appropriate.
There are a number of complications that can come up and as I’ve emphasized, the facts of the case can change the analysis, but in most cases probate is usually fairly straightforward.

If you have questions about Probate in Florida, particularly Probate in or around The Villages, Florida,  please feel free to contact my office.

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What if the husband cuts the wife out of the will? (Part 2)

Posted on September 24, 2012 by admin

Last time we talked about what can happen when a husband leaves a wife nothing under a will.  We explained Florida’s Elective Share Statute.
There is another aspect to this; what happens if the deceased spouse leaves the house to someone other than the wife?
Florida is very protective of surviving spouses and families. One of the ways Florida protects spouses and families is by our Homestead doctrine.  Homestead in Florida has several aspects; most Villages residents are familiar with the property tax exemption, where Florida reduces the tax assessment on the property used as your home.  But there are other aspects to Homestead protection; one of which is that Florida makes it very difficult under most circumstances to force a sale of the home to pay debts; there are some exceptions for mortgages, taxes, and homeowners association fees and some Bankruptcy cases, but generally if you owe a lot of money to someone, they can’t force  you to sell your home to pay that money.
The other major aspect of Florida Homestead has to do with what is called ‘descent and devise’; generally speaking, if someone has either a minor child (under the age of 18) or a surviving spouse, Florida does not allow that person to leave the house to someone other than the minor child and/or the spouse when they die.  Usually, if they try to do so, a judge will find that the attempted devise was invalid; the judge will throw out that portion of the will.  But you need to get this in front of a judge; this is not necessarily automatic and won’t happen by itself. If your spouse has done this or tried to do this, you need to contact a lawyer immediately and discuss what your options are.  There are a few exceptions to this, the two big exceptions are where there is a prenuptial or postnuptial agreement, where the surviving spouse has agreed to let this happen, and where the deceased spouse had put someone else on the deed during their lifetime, and the property passes by Joint Tenancy with Right of Survivorship; but even in that case, you need to contact a lawyer to see whether the spouse had the legal right to do so. And if they did have the legal right to do so, you might be able to file an elective share case to try to recover some of the value of the property.
Additionally, if the surviving spouse manages to get the devise set aside and recover the property, what the surviving spouse gets is going to depend on whether or not there are children of the deceased spouse; under those circumstances, the surviving spouse is probably going to get a ‘life estate’, meaning she owns the house for her lifetime, but after she dies the house goes to the children. If that is the case, then the surviving spouse can file an election to take a half interest in the house; the surviving spouse will own half of the house and the other half will be split between the deceased spouses children or descendants. But, and this is very important, under most circumstances the election must be filed within 6 months of the date of death of the deceased spouse. In other words, the surviving wife must decide and draw up and file the paperwork within 6 months of the husband dying
This is a very complicated area of the law, and there are very short deadlines. If you live in The Villages, Florida, and have a question about  your rights when  your spouse dies, you need to contact an attorney immediately.  I handle probate matters in Lake, Sumter and Marion Counties and handle will contests all over the state. If you have a question, please contact my office.

Posted in Elective Share, Homestead, Probate, Real Estate, Will Contest | 1 Comment

What if the husband cuts the wife out of the will? (Part 1)

Posted on September 24, 2012 by admin

Sometimes, a husband will leave a wife nothing under a will; or a wife will entirely cut out her husband from a will.
While Florida law does not prevent one spouse from leaving the other spouse nothing under a will, Florida law does provide that the surviving spouse can ‘elect’ against the will, under Florida’s Spousal Elective Share statute.
What this means is, the surviving spouse, usually the wife, can choose to receive 30% of the value of the estate; subject to some limits.  While the exact calculations can get very complicated, generally you add up everything passing under the will, and add in any property passing either by pay on death or beneficiary designation plus any gifts made within 1 year of the date of death.  So, if the husband left bank accounts, most life insurance policies, or investments to a child and cut the wife out of the will, or if the husband started transferring assets to a child shortly before he died, the surviving spouse can add those items in and claim 30% of them.  Once that number is calculated, then you compare that number with what the wife already received under most life insurance policies, real estate transfers and most other property transferred to her outside of probate. The difference between them is what she can collect from the estate or the other beneficiaries.
There’s a couple of wrinkles here, one of which is if the couple signed a prenuptial or postnuptial agreement limiting what she gets upon the husband’s death.
And, this is not limited only to the case where the husband cut the wife entirely out of the will; in a case where the husband left the wife a minimal amount under a will, or even if he left her everything under a will, but most of the assets passed outside of the will, or he gave away a lot of property right before he died, it may make sense to elect against the will.
This is a very complicated area of the law and there are very definite deadlines; certain things have to be filed within a certain period of time. And once the election is made, it is irrevocable, the wife can’t go back and change her mind later.
The point is, if you spouse cut you out of a will, or left you less than what you think you are entitled to, you need to talk to a Florida lawyer about this.  Depending on the exact facts, if your husband or wife has cut you out of the will, there are certain things that can be done even if Probate is not opened yet;   If  you are in or near The Villages, Florida, and have a question about your rights, feel free to contact my office.

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Alternatives to Trusts in Florida

Posted on September 20, 2012 by admin

Living trusts, or Revocable Living Trusts are often recommended to people moving to Florida. The usual reason for a living trust is to ‘avoid probate’.    I, personally, am not that big of a fan of living trusts, for reasons I discuss here:

Why living trusts don’t avoid probate in Florida

I also discuss the basics of alternatives to living trusts here:

Living Trust Alternatives

The point is, while there may be good reasons to use a living trust, use of a living trust to avoid probate in Florida is not usually one of them.  There are other ways to avoid probate in Florida.

 

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Common Law Marriage in Florida, or Not

Posted on September 19, 2012 by admin

I frequently get phone calls regarding common law marriage in Florida. Typically, the caller is a woman, has lived with a man for several years, and either he has died recently or they have split up.  She wants to know what her rights are in Florida as a common law wife.
The short answer is, she probably doesn’t have many rights.  With a couple of very limited exceptions, Florida does not recognize common law marriages.  The two exceptions are if  you formed a common law marriage in a state that recognizes common law marriage, and then moved to Florida, or if you formed a common law marriage in Florida on or before 1968.  In the overwhelming majority of cases neither exception applies; nearly always the relationship started here in Florida and started after 1968.
In a nutshell, unless the other person has made some sort of legal provision for  the other partner, such as putting their name on a deed, putting them on a bank account, or making them beneficiary of an insurance policy or put the woman in a will, or such, it is going to be very difficult to enforce any sort of rights against them or their estate. If the man died and left his house to his children in his will, or even if he died without a will, the woman is very likely to be at the mercy of the surviving children.  The children can demand the woman immediately vacate the house and turn over any property to them.  Unless there is either some sort of legal documentation in place, or unless the woman is actually, legally, married to the man, she basically has no rights.
Theoretically, depending on the exact facts, there may be a possibility of recovering some property under several different legal theories, such as quantum meruit, or seeking the imposition of an equitable lien on some real property, or putting in a claim against the estate; but these are very fact dependent, and usually kind of shaky theories; last ditch salvage operations as it were.  And, they clearly involve lawsuits, which means that it isn’t likely to be cheap to try to do this.
I see this all the time; typically the man and the woman are living together, acting as husband and wife, and the man promises to ‘take care’ of the woman after his death. But he never actually gets around to it.  There are a number of things that he could do; I discuss some of the options here Estate Planning for Unmarried Couples, Part 1
here,  Estate Planning for Unmarried Couples, Part 2 , and here,  Estate Planning for Unmarried Couples, Part 3 , but for whatever reason, they aren’t done.  Then the man dies, and the children come in and kick the woman out of the house.
From the woman’s’ perspective, the best thing she can do to protect herself is to insist on marriage. Marriage gives  you very definite rights in Florida; if there are concerns about one person getting all of the estate of the other person and depriving one set of children of property, then a properly drafted pre nuptial agreement can set out exactly who gets what, which I discuss here Prenuptial Agreements in Florida .
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If he or she is unable or unwilling to marry, then they need to make sure the other partner follows through with planning.
If you don’t look after this during both partners lifetimes, then the surviving partner is likely to be stuck after the first partner dies.
If you have questions about your rights, you need to talk to lawyer, before someone dies.

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How do you protect parents from children or others?

Posted on September 14, 2012 by admin

Sometimes I get phone calls from potential clients, and the story goes something like this: Father is being exploited by a child, or a nephew, or what have you. That child has a power of attorney from Father, and the child is transferring money to himself.  The child is cashing out life insurance policies, closing bank accounts, and otherwise taking Daddy for a ride.
If this is happening, you have a few options. The relatively easy, cheap, option is to make a report to the Florida Department of Children and Families, Adult Protective Services. In fact, if  you know of an adult who is being abused, Florida law requires you to report it.  Their phone number is 1-800-962-2873; or  you can report it on line here:

https://abuse-report-bc.dcf.state.fl.us/AbuseWebReport/AddReporterinfo.aspx
Having said that, in my experience, DCF, while vigilant, does not always agree with the reporter for whatever reason.  The abuse usually needs to be clear cut and obvious; and there is not always a clear line between voluntary behavior and coercive behavior.  Nonetheless, if you are concerned you certainly should make the phone call; in some cases I have seen DCF come out, talk the alleged abuser, DCF closes the case as unfounded, but the alleged abuser will then straighten up and fly right as it were.
The other option is to bring a guardianship.  A guardianship is a two step process; first, a judge must determine whether the person is competent, or capable of managing their affairs. If the judge finds that the person is not capable of managing their own affairs, then the judge appoints a guardian to manage that persons affairs;  both personal and financial affairs.
Without going into an extended explanation of the mechanics, essentially an interested party, such as a child or spouse, files paperwork setting out why they think the person is incapable of managing their affairs; the judge then appoints an attorney for the person and also orders that the person be examined by several professionals, including a psychiatrist.  Those professionals report back to the judge and while the judge does not have to accept their recommendation, the judge nearly always does so.  Once the judge finds the person incapacitated, then the judge decides who would be the best individual to look after the person; there are a number of factors that I am not going to get into here, but the point is that as part of the process, usually all recent financial dealings are exposed; if someone has been transferring money from Father to themselves, this is likely to come out during the process. And if the judge is convinced that someone has been stealing from them, the judge can order that this be fixed.
I, personally, do not handle many routine guardianships; there are a number of attorneys who handle these on a regular basis, and nearly all of them are fine attorneys. However, I do occasionally handle ‘contested’ guardianships; particularly where two or more people are trying to get appointed as guardian.

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Why you need a will

Posted on September 13, 2012 by admin

I have seen various statistics on the number of Americans who die intestate, or without a will.  The numbers range from just over 50% to just about two thirds.
No matter which number is right, that is simply too high.
If you die without a will the state decides who gets what. Also, a judge will decide who gets to care for your minor children, if any.
I explain, briefly, what the likely legal outcome is if you die without a will in Florida here:

Intestate Estates


But I want to emphasize the non legal aspects here. Not so much the law, as the family aspects. If you die without a will, someone is going to have to be named personal representative. Depending on who your relatives are, the person who is the personal representative may wind up not being the person you would choose; in fact, some of the biggest probate fights I have seen were over who was going to be executor.
The personal representative is probably going to have to post a bond; they are going to have to spend money to get an insurance company to issue a piece of paper insuring you. This costs money, and takes time.
People who you might not want to get your property may get some of it. If you don’t have a spouse or children, it is probably going to your brothers and sisters and nieces and nephews. If  you come from a large family, where your siblings had a lot of children, it is entirely possible that you may wind up with a bunch of people you barely knew, or never even met, inheriting from you.  The term lawyers use is “laughing heir” which means just what it sounds like; someone who finds out a distant relative died, left them some money or property and they are happy about it.  It’s up to you, but personally, I would not want someone to be happy over my death; particularly someone that I never met, that I never knew, being thrilled because I was dead and the state law says that they get my money.
People who you might want to get your money probably won’t; or at least, they won’t get as much as you would like. In the case above, where the person leaves no children, no spouse, but several siblings and nieces and nephews, that person may very well be close to or have a favorite niece or brother or sister. If they leave a will, they can see that favorite gets what they want; if the don’t leave a will, all they are entitled to is a proportionate share; if there’s 8 brothers and sisters, each brother and sister will get one eighth share; if one of those siblings is dead, then their children will split their parents share between them; in other words, in a case where one of 8 brothers and sisters is dead, and that dead brother leaves 4 children, his children are going to split one quarter of one eighth, or one thirty second of the estate, each. If that’s OK with you, then great; but if one of those nieces was  your favorite, a niece who looked after and called and visited you, I can tell you that niece is going to feel left out; not because she didn’t get much money, but because her favorite aunt or uncle didn’t think enough to draft a will.
If you have minor children, you absolutely, positively, need a will.  You need to appoint a guardian to look after your children.  If you die without a will, a judge is going to appoint as guardian whoever the judge sees fit; you are not going to have any input into who raises your children.
The cost of a will is modest, in most cases; a few hundred dollars, even for a married couple. And a properly drawn, lawyer drafted will is going to address situations that you probably never even thought of; such as what happens if someone dies before you?
If you don’t have a will, call a lawyer. Soon.  I know, some people feel uncomfortable discussing wills; there’s a feeling that talking about this might bring on a death. It won’t. Estate planning will not cause a death; but sometimes people die without a will and that’s a tragedy.

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Do I need a probate in Florida?

Posted on September 13, 2012 by admin

Very frequently, I get phone calls, to the effect of my mother or father died, my husband or wife died, they left a house, a bank account, do I need a probate?
The answer is, it’s going to depend.  It is going to depend on what they left, and how they set up their ownership.
Very generally, when someone dies in Florida and leaves property, and it can be real estate, a bank account, or anything else worth money, you have to look at each piece of property and figure out whether you need a probate on that piece of property.  If none of the property needs to be probated, then no,  you don’t need to bring a probate.
First, where the person was married, very frequently, the surviving spouse will be listed a co-owner on all of the property; the house, the bank accounts, the car or truck.  If they are listed as a co-owner and the type of co-ownership is “tenants by the entirety” or “joint tenancy” or “joint owner with right of survivorship” then you won’t have to bring a probate on those assets.  In many, if not most cases I see, this is what happens when one of a married couple dies.  Also, in some cases the deceased person named another person, who they were not married to, as joint owner of some things; in that case there is no probate needed on those assets.
Second, a lot of times the deceased person will have named one or more beneficiaries on a bank account, retirement account, life insurance or other financial instrument. So long as the beneficiary survived the other person, all the beneficiary should have to do is take the death certificate to the bank, the broker, or the agent and the company should pay the money over to the beneficiary.
Normally, probate will only be needed if there is property that doesn’t fall into one of these two categories.  There are some exceptions, such as where there may be a lawsuit that needs to be brought, such as a wrongful death suit.   If you have a loved one who has died in Florida, you should contact a probate attorney and have them review the documents. It would help if you first contacted whatever banks or financial institutions you know of and provide a copy of the death certificate to bank; the bank may be able to tell you that there was a beneficiary designation on the account and that probate is needed. If you set an appointment with a lawyer, be sure to bring at least any deeds and vehicle titles or registrations, and mobile home title certificates to the appointment.

If you have questions regarding whether you need a Probate in The Villages, Florida or Lake County, Sumter County or Marion County, Florida, please contact my office in Summerfield Florida.

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The cost of probate in Florida

Posted on September 10, 2012 by admin

Sometimes I get the question, what’s the average cost of probate in Florida, or how much does it cost to probate an estate.  The answer to the first question, on average costs, is I don’t know.  And honestly, even if I did, it would be about as helpful as knowing the answer to the question what is the average cost of a car.  The cost of a car is going to depend on whether it is new or used, the make, model, and options.  Likewise, the average cost of probate isn’t necessarily going to tell you what a particular probate is going to cost in Florida.  And it certainly isn’t going to tell you what your probate is going to cost.
Florida has 2 types of probates, Summary Adminstration, for estates less than $75,000 in value or where the person has been dead for more than 2 years, and Full Administration, for everything else.  The filing fees are about the same, $345 for the Summary, $400 for full; and if the person has been dead for less than 2 years you will have to advertise the estate in both cases. So, the court costs and advertising costs are roughly the same.  What it costs to advertise the estate is going to depend on the county and the newspaper it is advertised in; the lowest I have seen is about $70; I have also seen some counties and newspapers where it can cost several hundred dollars to run the ad.
The other costs are going to depend on what assets there are, what has to be done, whether there are any creditors, and whether the heirs all cooperate.
If there is real property, then odds are  you will need to bring a homestead petition; or maybe do some sort of Personal Representatives deed. If there are creditors, those creditors will have to be notified, and if they put in a claim, they will have to either be paid or copied on the accounting showing there are insufficient assets to pay them. If there is property in more than one county, there are going to be costs associated with recording the probate in more than one county.  And then it comes down to what the lawyer charges.  I briefly discuss the difference between an hourly rate and fees based on the value of the estate here:

http://flawyer.us/id1.html


But you should talk to the lawyer about actual costs and anticipated fees before you hire the lawyer.

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Why revocable living trusts usually won’t avoid probate in Florida

Posted on August 30, 2012 by admin

At least a couple of times a week, I get phone calls from potential clients; asking about living trusts, revocable trusts, and avoiding probate. Sometimes clients want me to review an existing revocable trust, sometimes they want me to draft a new living trust.
Nearly always, the reason that they want, or have a revocable trust is to “avoid probate”.
The fact is, that in Florida, revocable trusts or living trusts generally do not avoid probate; in fact, the existence of a trust can actually trigger a probate.
I go into much more detail on my website; if you follow this  link back to my website it fully explains the ‘why’.

Why living trusts don’t avoid probate in Florida
Don’t let your neighbor, financial planner, stockbroker or banker tell  you that you need a revocable living trust to avoid probate in Florida; there are a number of ways of avoiding probate in Florida but a living trust is not one of the ways to do it.

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