Florida Probate Litigation Lawyer Blog

Whether an individual dies testate (with a will) or intestate (without a will), there are always expenses and obligations that must be paid by the estate. Whether the estate is in Palm Beach, Miami or Fort Lauderdale, each estate has funeral costs, there are probably some medical expenses, there may even be back taxes that must be paid. Those expenses and obligations are paid prior to the beneficiaries receiving their share, if any, of the remaining estate. Florida Statute 733.707 governs the order of payment:

Class 1 – Costs of the estate administration and fees of the personal representative and attorneys.
Class 2 – Reasonable funeral expenses, not to exceed $6,000.
Class 3 – Debts and taxes that have preference under federal law.
Class 4 – Reasonable and necessary medical expenses of the last 60 days from the illness of the decedent. This includes compensation of professional individuals caring for the decedent.
Class 5 – Family allowance. This allowance can be up to $18,000 and provides the spouse and family with some money to live on during the probate administration.
Class 6 – Past due child support that is court ordered.
Class 7 – Debts that come about after death from the continuing on of decedent’s business.
Class 8 – All other claims, including judgments and decrees.

It is up to personal representative to properly ensure that the expenses and obligations get paid. After the personal representative pays a specific class, if there is not enough remaining money to pay the creditors of the next class, then those creditors are paid ratably in proportion to their claims. If an estate cannot pay all of its claims through Class 8, then it becomes insolvent. If the estate becomes insolvent, the beneficiaries receive nothing. For example, an estate may only have enough money to pay the costs of the probate administration from Class 1 and Class 2 expenses for the funeral home in Aventura. This means, if properly paid, no money will be left for the other classes or beneficiaries.

Formal Florida probate, both testate and intestate, is a long and complicated process. It can often be difficult to determine if you as a creditor or beneficiary received your rightful share of an estate. If you live in the West Palm, Fort Lauderdale, or Miami-Dade area and feel you received your improper share of an estate, the probate litigation team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

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Intestate estates in Florida commence when any interested person (heirs or creditors) files a petition for administration with the local probate court of decedent. For example, if decedent died while domiciled in West Palm Beach, the probate court jurisdiction would be within the 15th Judicial Circuit. The petitioner must state their interest in the estate, information about the last known address of decedent, names of known beneficiaries, a request for the court to appoint a Florida personal representative and finally in an intestate estate, a statement that after exercising reasonable diligence to locate any unrevoked wills, that none can be located.

Under Florida laws of intestacy, the surviving spouse (if any) is entitled to preference in being appointed the personal representative of an estate. If there is no spouse, then a majority in interest of the heirs may select the personal representative. In either case, the court has final say in the decision. Once the court makes that final decision, letters of administration are issued which state that the personal representative has been appointed and qualified by the court to handle the deceased’s estate. The personal representative must be represented by a Florida licensed attorney throughout this process.

After the Letters of Administration are issued, the personal representative must then serve this notice to all known beneficiaries and creditors. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. Any interested person who receives notice has three months to file an objection challenging the qualification of the appointed personal representative, the venue, or the jurisdiction of the court.

Once the Florida Probate Court determines that all costs of administration and valid creditors' claims have been paid, the next step is to distribute the Florida probate assets via Chapter 732, the Florida Statutes governing intestacy.

Formal Florida Probate, even under intestacy, is a long and complicated process. It can be often be difficult to determine if you received your rightful share of an intestate estate. If you live in the West Palm, Broward, or Miami-Dade area and feel you received your improper share of an estate as a beneficiary or creditor, the probate litigation team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Bradley H. Trushin | Permalink | Email This Post

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Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.

If you live in the West Palm, Broward, or Miami-Dade area and believe that a friend or relative’s will was improperly admitted into probate, the probate litigation team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

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Under Florida Statutes Chapter 735, when a probate estate is valued at less than $75,000.00, the estate qualifies for summary administration, a simplified and much quicker probate process. It is important to remember, however, summary administration is not the default type of administration. To obtain summary administration, a petition must be filed by any beneficiary within two years of the death of the decedent. Once the court approves the petition, the court may enter an order allowing the immediate distribution of the assets of the estate to the persons entitled to them. While summary administration may seem ideal for smaller estates, there may be some disadvantages for estates in Miami, Fort Lauderdale or Palm Beach if, for instance, real property owned by the estate is in foreclosure.

When calculating the assets subject to probate, it is necessary to know that most stock accounts, IRAs, life insurance and primary residences are not usually subject to probate and therefore would not be included in the $75,000 dollar calculation. For most estates, the most valuable asset is the primary residence. When this qualifies under Florida homestead, the residence passes directly to their heirs as proscribed by the Florida Constitution and therefore is not included in calculating the probate estate and not part of the $75,000 to determine whether the estate qualifies for summary administration.

Summary administration may seem like a great idea for an efficient distribution of a smaller estate. One major disadvantage, however, with summary administration is that a personal representative will not be appointed by the court. If a decedent died without a will, the court will not name a personal representative in a summary probate administration as they would in a formal probate administration. There is only a petitioner. This is the individual who files the petition for summary administration. A petitioner is not given the same authority as a personal representative to inquire, manage or dispose of assets as the personal representative does. This can cause a lot of problems with the administration of the estate. For instance, if decedent dies with a home in foreclosure, a personal representative may be necessary to discuss the options on this property with the bank. A petitioner would not have such broad authority.

If you live in the West Palm Beach, Broward, or Miami-Dade area and want to discuss your options with an attorney or feel you received your improper share of an estate as a beneficiary or creditor, the probate litigation team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

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