Frequently Asked Questions
Probate, Wills & Trusts
Probate, wills and trust law can be confusing. So, we have given you some answers to the questions we get most often. Please, call us if you need to talk to a lawyer.
Making Your Last Will & Testament
Who Can Make a Will?
The maker of a will is referred to as the testator. Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. Fla. Stat. Ann. § 732.501 (West)
Requirements for valid will?
A will must be written. A testator must sign the will at the end of the document in the presence of two witnesses. The testator and the witnesses must sign in each other’s presence. Or, the will is not valid.
Must a will be notarized?
No, but a notarized will is said to be “self-proving” so that the witnesses to the will do not need to be located and asked to testify in the probate proceedings.
Is unwitnessed will valid?
The will is not valid and cannot be entered into probate.
What about online forms?
Yes, but you cannot be sure that you are using the right form or that you have done everything right according to law.
That is why you should seek legal advice from a licensed Florida Attorney when you create an important document like your last will and testament.
Can a will be revoked?
Yes, making another later will revokes all prior wills. A will may also be revoked by the testator destroying the will. There is a presumption that a will was revoked if it is not found at the death of the testator.
What about bank accounts?
Many of a deceased person’s assets pass directly to a named beneficiary outside of probate and are not controlled by the person’s will unless expressly stated in the will. Jointly owned real and personal property with a spouse or jointly owned property with rights of survivorship automatically become property of the survivor at the death of the other owner. Financial and brokerae accounts allow a beneficiary to be named and those accounts go direclty to the named beneficiaries. LIfe insuarnce is paid directly outside of probate to the named beneficiary of the policy.
Our Services
Estate Planning
We handle estate planning that includes wills, powers of attorney, healthcare surrogate directives, living wills and other estate planning documents.
Trusts
We prepare revocable “living” trusts to avoid the cost and delay of having to probate a will.
Deeds
We prepare deeds that reseve life estates as estate planning tools used to avoid probate. We also prepare “Lady Bird Deeds” that are an enhanced form of deed with life estate reserved.
Probate
We handle probate of wills and administration of estates where there is no will.
Power of Attorney, Living Will & Healthcare Surrogate
How to avoid guardianship?
If a person becomes incapacitated or incompetent before they die, a guardian will have to be appointed to handle their affairs. This is expensive. So, the best way to avoid a guardianship is to name someone you trust so he or she can act on your behalf if you become unable to act for yourself.
In most cases a durable power of attorney can avoid the necessity of having a guardianship for an incapacitated person. Florida guardianship law provides that a durable power of attorney can be an alternative to guardianship if the power of attorney can sufficiently addressed the need for a guardianship. F.S. 744.331.
Power of attorney?
If a person becomes incapacitated or incompetent they will be unable to make important healthcare decisions. You can appoint someone you trust, like your spouse or adult child, to be your agent to make healthcare decisions if you are unable to do so. This will help the healthcare providers know exactly who is making the decisions for them to care for you.
EVERYONE needs to give someone that he or she trusts a durable power of attorney.
A power of attorney is the appointment of another person (the agent or attorney-in-fact) to be the agent to act on behalf of the person giving the power of attorney (the principal). A power of attorney can be given in general or for a specific matter. Thus, a power of attorney can be general or specific power of attorney.
A power of attorney ceases to be valid upon the incapacity of the principal unless the power of attorney is “durable” which means that it is not intended to terminate on the principal’s becoming incapacitated. Thus, a “durable power of attorney” is a power of attorney that does not terminate upon the principal’s incapacity. F.S. 709.2102(4).
A durable power of attorney is created by language in the written document stating, “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” F.S. 709.2104.
Healthcare surrogate?
Florida law allows a person to designate an agent for healthcare decision making when the principal is unable to do so. Thus, your healthcare “surrogate” can make healthcare decisions for you and provide informed consent for healthcare. The document appointing a healthcare surrogate is similar to a power of attorney, but only for healthcare matters.
Who do I appoint?
You can give the same person the right to make financial and healthcare decisions for you. However, it is better to limit the durable power of attorney to financial decisions and have a separate healthcare agent appointed. This is true mainly because you may want to separate persons to make financial and healthcare decisions if you become incapacitated.
What's a Living Will?
Living Wills basically are a form of advance healthcare directive that states that your life will not be prolonged by artificial means if you have a terminal condition as determined by two phycicians.
What is a healthcare proxy?
In such a case Florida law allows a “proxy” to make healthcare decisions for the patient. If there is no court appointed guardian to serve as proxy, then the spouse may serve, and if there is no spouse, an adult child or the majority of the adult children, failing in which a parent of the patient or the patient’s siblings may make proxy decisions. Finally, if there are none of the foregoing persons available, a “close friend” who has exhibited special care and concern for the patient may act as proxy
Do not resuscitate orders?
A person may legally execute such an order, but we feel that is better left to the patient and his or her family and healthcare professionals based upon the circumstances existing at the time, which circumstances are hard to predict in advance.
Avoiding Probate – Trusts & Deeds
Ways to avoid probate?
There are ways to avoid having to probate your will through probate court to pass ownership of your assets to your chosen beneficiaries. Some of those techniques are more costly and complicated that a simple will, such as a revocable trust, and some techniques are inexpensive and straightforward, such as deeding your home to a beneficiary and reserving a life estate.
Revocable trusts?
A revocable trust is one way to control the lifetime use and control of your property and its income and to provide for the transfer of the property to your beneficiaries at your death, all done outside of the probate court process and the public record. Revocable trusts can also provide for someone to take charge of your finances if you become incapacitated before you die. If drafted and used correctly, a revocable trust can be an efficient way to deal with your estate before and after your death.
Cost of will vs trust?
Looking at the costs involved, the cost of preparing a will is significantly less than preparing a revocable trust. Yet, the costs involved to probate a will at your death are more than the costs to settle a revocable trust at your death. However, like any legal matter the attorneys’ fees and costs are directly related to the size and complexity of a particular person’s estate.
Advantages of living trusts?
A revocable trust is one way to control the lifetime use and control of your property and its income and to provide for the transfer of the property to your beneficiaries at your death, all done outside of the probate court process and the public record. Revocable trusts can also provide for someone to take charge of your finances if you become incapacitated before you die. If drafted and used correctly, a revocable trust can be an efficient way to deal with your estate before and after your death.
Life estate deeds?
Yes, if you want your beneficiary to have your home, for example, you can deed the home to the beneficiary during your lifetime, but reserve a life estate, that is, the right to live there for as long as you live. However, a deed is permanent. It cannot be revoked.
Lady Bird Deed?
Lawyers have development better ways to protect you if you convey your property to a beneficiary and reserve a life estate. An enhanced life estate allows you to have greater control over the property than simply the right to live there until your death. Such an enhanced life estate could allow you the right to retain sell or mortgage the property or defeat the claims of creditors of the person(s) to whom you conveyed the title.
Probate of Estates
What is Probate?
The word “probate” refers generally to the administration of the deceased’s estate in the probate division of the circuit court in the county where the deceased lived. If there was a will, the court decides if the will was a valid will and appoints the personal representative named in the will to be in charge of the estate. If there is no will, the court appoints a person as personal representative from the list of those with preference to serve under Florida law. The court has the final say on who is appointed as personal representative.
What if there is no will?
If a person dies without a will, Florida law determines who receives his estate. It depends on whether the deceased person is survived by a spouse and children or their descendants.
The surviving spouse inherits the entire probate estate if the deceased person is not survived by any children or if all the deceased’s children are the children of both the deceased and the spouse.
But, if the deceased person had children by another relationship, the situation becomes more complicated. Then, the surviving spouse will only receive one-half of the estate.
If there is no surviving spouse of the deceased, the probate estate passes as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) 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.
Who can open an estate?
Any “interested party” may begin the probate of the estate of a deceased person by filing a petition for administration in the probate division of the circuit court in the county where the deceased lived. An “interested person” could be the spouse, children, the beneficiaries under a will, a creditor, or other person who has a valid legal connection to the deceased estate.
When to call a lawyer?
Contact a probate lawyer as soon as possible. There are important legal decisions to make regarding the estate, such as securing the assets and contacting creditors. You will also want to make financial arrangements with the lawyer for payment of legal fees and the costs of probate, such as court costs and publication fees, required to complete the probate.
What will my lawyer need?
Some of the basic information you will need to give the attorney is:
- Death certificate
- The Will
- List of the real and personal property owned by the deceased and approximate value of each item
- List of the debts owed, the amount of each, and name and address of creditor
- All the documents, such as bank statements, deeds, titles, etc., used to make the property and debt lists
- The full legal names and contact information for all the heirs or beneficiaries
- Contact information on the person named as personal representative in the will or the person who the heirs want to be in charge of the estate
Who gets the original will?
Florida law requires the custodian of a will to surrender the will to the Clerk of the Court within 10 days of learning of the death of the testator.
What about lost wills?
Yes, a copy of a will may be probated on the testimony of one of the witnesses to the will. F.S. 733.207.
How to probate a lost will?
If the will is not found or has been destroyed (ex. house fire) any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it can be proved by one disinterested witness.” F.S. 733.207
Types of Probate in Florida
Different types of probate?
The word “probate” refers generally to the Yes. Under Florida law the normal probate procedure is called “formal administration.” However, there are two special provisions to deal with small estates. These are called “summary administration” and “disposition without administration.”
Which type of probate?
Basically, the value and type of assets and the type and amount of debts determine the course of action to be taken to administer the estate.
Disposition with administration is for situations where the decedent’s assets were only personal property which was exempt from the claims of creditors and involves a simple procedure to obtain a court order passing ownership to the spouse or heirs.
Summary Administration is for estates where the value of the non-exempt assets is less than $75,000 or the decedent has been dead for over two years.
Formal Administration involves the appointment of a personal representative to gather the assets, identify the creditors, pay claims, and disburse the remaining assets to the beneficiaries. This is the main type of probate procedure in Florida.
Creditors’ Claims & Exemptions
How are debts paid?
If there are sufficient funds in the estate, then all of the claims have to be paid. Creditors are required to file a claim against the estate within 3 months after the personal representative publishes a notice to creditors in a local newspaper. However, it is the duty of the personal representative to make a diligent search to identify and notify all of the creditors of the deceased. Creditors’ claims are barred if not timely filed.
Disputing creditor's claims?
Yes, but it must be done within 30 days of the filing of a claim. If a debt is disputed, the personal representative must file an objection to a claim, and if an objection is filed the creditor must file a lawsuit to collect the debt and prove the validity of the debt.
No money for claims?
Certain claims receive priority are are paid first before other claims. These include expenses of administration, funeral bills, and certain medical expenses.
Homestead property?
Yes, Florida law has many provisions to protect the assets of a decedent from having to be sold to pay creditors. The two main protections are homestead and exempt property.
Homestead is a very complicated subject, but it mainly protects the real estate and residence of a deceased from the claims of creditors. Homestead protects the spouse and children of the deceased in an important way. In fact, the homestead of a deceased does not even pass through the probate estate, but passes directly to the spouse and heirs free of the claims of creditors.
Other exempt property?
Exempt property provides that many of the deceased assets are exempt from the claims of creditors. These assets include such things as two family vehicles, household furnishings, and other items provided by law.
These matters are complex but can be vital to the survivors of the deceased. This is why is important to have a qualified Florida probate lawyer handle your estate.
Florida law has many provisions to protect the surviving spouse and minor children, such as a monetary family allowance and an elective share for the surviving spouse if the deceased attempts to ‘cut’ the surviving spouse out of the estate.
Funeral expenses?
Funeral expenses are payable from the estate. The first $6,000 of funeral expenses have a priority over general creditors of the estate. A person who paid funeral expenses must file a creditor’s claim to be reimbursed by the estate.
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Personal Representatives
How is an estate opened with the court?
Any “interested party” may begin the probate of the estate of a deceased person by filing a petition for administration in the probate division of the circuit court in the county where the deceased lived. An “interested person” could be the spouse, children, the beneficiaries under a will, a creditor, or other person who has a valid legal connection to the deceased estate. Normally, the persona named in the will to serve as personal representative applies to open the estate. Or, where there is no will, the person with a preference under law will apply for appontment.
Who does the court put in charge of the estate?
The court will appoint one or more persons to be in charge of the estate. In Florida this person is called the “Personal Representative” which is the same as the executor of the estate.
Can a non-resident be personal representative?
Apersonal representative does not have to be a resident of Florida. Certain non-residents can serve as personal representative. These includes a legally adopted child or adoptive parent of the deceased; a person related by lineal consanguinity (blood relative) to the decedent; or a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity t(a blood relative) of any such person; or the spouse of a person otherwise qualified under this section. Fla. Stat. Ann. § 733.304
What does the personal representative do?
The personal representative generally has the following duties:
- To identigy, take possession of and make and inventory of the property of the deceased;
- Indentify and notify the creditors to whom the deceased was indebted;
- Pay the expenses of administration and just debts of the estate;
- Account to the court for the monies and property handled by the personal representative; and
- Disburse the remaining property of the estate to the rightful beneficiaires.
Is the Personal Representative paid?
Yes, the personal representative is entitled to be compensated for the services rendered to the estate. The law provided a formula for the amount of compensation.
Does a will have to be probated?
No. The will is a vehicle to get the title to assets in name of someone who is deceased into the name of the living beneficiary. If there are no assets, or if all the deceased assets passed by survivorship to another person it may not be necessary to probate the will. But, the will is required to be deposited with the Clerk of the Court for safekeeping.
How long does probate take?
Depending on the complexity of the case, formal Administration takes about one year, summary administration takes 30 to 90 days, and disposition without administration can be accomplished in 30 days or less.
How is an estate closed?
When all the assets have been collected by the personal representative and all the debts paid or arrangements made, the estate is closed by the filing of an accounting and a petition for discharge of the personal representative. Then, if there are no objections by interested parties, the remaining assets are disbursed to the proper beneficiaries, and Court discharges the personal representative and the estate is closed.
Attorney Fees & Costs
How are attorney fees charged for estates?
Attorneys’ fees are based on experience of the attorney, the time necessary to handle the case, and the complexity of the case. Typically, the attorneys’ fee for an uncomplicated summary administration is around $1,500-$2,000.00. Formal Administration is more involved, and the attorneys’ fees usually begin around $3,000 with a final fee of around 3% of the value of the assets of the estate. Of course, each case is unique and the attorney can quote you a fee at your initial consultation. You and the attorney are free to negotiate the fee.
What are the court costs and expenses?
Filing fees and standard out of pocket costs in a summary administration usually run around $500, and the typical costs in a formal administration usually are around $750. Of course, these are the minimum costs. If expert appraisers or other professionals, such as CPAs, are needed or the case is complicated or litigated, the costs can be greater.
Are attorney fees and costs paid by the estate?
Yes, the attorney’s fees and costs are usually a valid expense of the estate administration.
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