Florida Probate Law

An estate settlement or probate in Florida is a court-supervised process for identifying and gathering the decedent’s Florida probate assets, paying taxes, claims and expenses and distributing assets to the beneficiaries of the probate estate. The probate laws of Florida require that all wills must go through probate.  The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law establishes two main types of Florida probate administration:

a)      Formal Probate Administration, with which most of this information about probate is concerned, and includes probate estates that are in excess of $75,000 of value, or in which there are multiple creditors involved, and

b)      Summary Probate Administration, which involves an estate that is less than $75,000 in value, other than exempt assets (including the Florida homestead), and for which there are no outstanding unpaid creditor claims.

The Florida law of probate also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”

If you need experienced Florida probate lawyers and attorneys to represent you regarding a Florida probate estate, please call us at (904) 448-1969 or toll free at 866-510-9099 or email us at Info@TheColemanLawFirm.com.

• a Florida bank account in the sole name of a decedent is a Florida probate asset that 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 subject to probate in Florida;
• 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 and is subject to probate;
• Florida law provides that 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) but real estate in Florida 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.

This list is not exclusive.  If you have a will in probate in Florida, it may be necessary to obtain legal advice and help with probate from Florida probate lawyers and attorneys  to determine what constitutes Florida probate assets.  If you need the assistance of a probate lawyer in Jacksonville, Florida, please call us at (904) 448-1969, toll free at (866) 510-9099, or email us at Info@TheColemanLawFirm.com.

A last will and testament is a written legal document, signed by the decedent and witnesses, that meets the formal requirements set forth by the  Florida law of probate. A last will and testament usually designates a personal representative (sometimes called an Executor) to administer the Florida probate estate and names beneficiaries to receive Florida probate assets. A last will can also do other things, including establishing a testamentary trust and designating a trustee.

Generally, the original will is necessary to open a probate estate.  If the original will cannot be located and it was in the possession of the decedent prior to his or her death, Florida probate law provides for a rebuttable presumption that the will was destroyed by the decedent, and therefore was revoked.  In that event, the court will probate the estate and an intestate estate.  However, if it can be shown that the original will can not be found and it can be established that the decedent did not destroy the will, then the probate court can allow a copy of the will to be substituted for the lost will and the estate can be probated as a testate estate.

To the extent a last will and testament properly devises Florida probate assets and designates a personal representative, the last will and testament controls over the automatic provisions set forth under  Florida probate law. In the absence of a valid last will, where there is no will, or if the probate estate is without a will because the last will fails or is invalid in any respect,  the Florida probate law of intestacy designates the beneficiaries and designates the way to select the personal representative for the Florida probate estate settlement.  If you need Florida legal advice regarding a last will and testament or a will in probate in Florida or if there is no will, please contact our Florida probate lawyers and attorneys for probate through our probate law firm at (904) 448-1969, or toll free at 866-510-9099, or email us at Info@TheColemanLawFirm.com.

Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found, pursuant to the  Florida law of intestacy. If there is no last will and testament, or if the probate estate is without a will, the assets of the decedent will be distributed to the intestate heirs as follows:

• If there is a Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida probate estate.
• If there is a Surviving spouse and lineal descendants.

a)      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 Florida probate estate plus one-half of the rest of the Florida probate estate, and the lineal descendants share the remaining half.

b)      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 Florida probate assets and the lineal descendants share the remaining half.

• If there is 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 shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.
• If there is No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida 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 probate 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 Florida exempt homestead, if titled in the decedent’s name alone, the surviving spouse receives a life estate in the Florida homestead, with the lineal descendants of the deceased spouse receiving the remainder in there in the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida homestead outright.

One of the principal reasons for preparing a last will and testament is to properly provide for the distribution of assets to a descendant who is a minor.  As you can see, if one does not have a last will and testament, the Florida intestacy statute provides for the distribution of Florida probate assets to your lineal descendants.

An example of the complications that can arise when there is no last will, you may want to visit our blog article entitled “The Problem With Life Estate Deeds.”  Life estate deeds are often used to avoid probate, but are not recommended for that purpose of experienced Florida probate lawyers.

If you need an experienced Florida probate lawyer to represent you as a beneficiary of a Florida probate estate, please contact us toll free at 866-510-9099.

If those descendants are minors (under 18 years of age), before any probate assets can be distributed from the Florida probate estate to the minor descendants, it is necessary for a Florida probate court supervised guardianship to be established on the assets that are being distributed to the minor beneficiary.  The Florida probate court will appoint someone to serve as the guardian of the property of the minor descendant(s).  The guardian’s responsibility will be to manage the assets for the benefit of the minor descendant and see that the assets are used properly.  However, it is necessary to get Florida probate court approval for all expenditures on behalf of the minor descendant, until the child reaches 18 years of age (unless the court appointed guardian posts a surety bond with the probate court).  On the child’s 18th birthday, the probate court is required by  Florida probate law to distribute all of the assets, lump sum, outright to the 18 year old child.  For more information about Florida guardianship law, please go to our page discussing Florida guardianship law.

Through a last will and testament, your Florida attorney can provide for a testamentary trust that is designed to hold any portion or all of the assets for any descendant who is less than 18 years of age, and who is to receive assets from your probate estate.  The trustee of that trust is given instructions by you, in the legal document, regarding the uses of the funds, and the amount of access the beneficiary is allowed to have to the income or the principal from the trust assets that you have allocated for the minor child.  For more information, please visit our page discussing Wills in Florida, or our page discussing Revocable Living Trusts.

You can provide for the management of the trust assets for the benefit of your descendants for up to 360 years in Florida.  You determine when the descendant(s) have access to the assets owned by the trust, and the purposes for which funds can be withdrawn from the testamentary trust.  You determine the timing and amounts of the distributions of the trust assets to each descendant.  You can spread the distributions out in multiple distributions with several years in between each distribution.  Or, you can provide for lifetime trusts that will provide substantial asset protection from the beneficiary’s creditors, including divorcing spouses, general creditors and even the IRS.

Through the use of such a testamentary trust, you can avoid the Florida law that requires all of the assets left to a minor descendant be distributed in a lump sum at age 18.

• Clerk of the Probate Court , in Duval County, Florida for probate matters in Duval County, Florida.  The probate clerk’s office is located at 330 E. Bay Street, Jacksonville, Florida.
• For St. Johns County, the Clerk of the Probate Court is located at 4010 Lewis Speedway, St. Augustine, Florida 32084 (See Question 7).
• For Clay County, the Clerk of the Probate Court is located at 825 N. Orange Avenue, Green Cove Springs, Florida 32043.
• The Nassau County, Clerk of the Probate Court is located at 76347 Veterans Way, Yulee, Florida 32097.
• Circuit Court (acting through a Circuit Court Probate Judge, See Question 8).
• Personal Representative or Executor (See Questions 9 through 11).
• Florida Probate Lawyer or Attorney for the Personal Representative (See Question 12).
• Creditors or other Claimants (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Beneficiaries of the Florida probate estate (See Question 17).
• Trustee of Revocable Living Trust (See Question 21).

The personal representative is the person or persons, bank or trust company appointed by the Florida probate court to be in charge of the estate settlement and administration of the Florida probate estate. The generic term “personal representative” has replaced such terms in probate as “executor, executrix, administrator and administratrix.”

Upon a probate filing the personal representative in the probate of wills is directed by the Florida probate court to administer the probate estate pursuant to  Florida probate code and the Florida probate rules. The personal representative is obligated to follow certain probate steps:

• Identify, gather, value and safeguard probate assets in probate.
• Publish a “notice to creditors” in a local newspaper, giving notice to file claims and other papers relating to the Florida probate estate.
• Serve a “notice of administration” on specific persons, giving information about the will in probate and the probate timeline for estate administration and giving notice of requirements to file probate forms with the Florida probate court for any objections relating to the Florida probate estate.
• Conduct a diligent 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 against the Florida probate estate.
• Object to improper claims in probate and defend law suits brought against the Florida probate estate on such claims.
• Pay valid claims of the Florida probate estate.
• File tax returns for the Florida probate estate.
• Pay taxes of the Florida probate estate.
• Employ necessary probate professionals to assist in probate, including a  Florida probate lawyer or attorney in a counsel of record capacity.
• Pay administrative expenses of the probate estate.
• Distribute statutory amounts or probate assets to the surviving spouse or family.
• Distribute assets to beneficiaries of the Florida probate estate.
• Close Florida probate administration.

If you need an experienced Florida probate lawyer to represent you as personal representative of a Florida probate estate, please call us toll free at 866-510-9099.

• The personal representative could be an individual, multiple individuals, bank, or trust company, subject to certain restrictions as set forth in the Florida probate codes that your Florida probate lawyer can explain for you.
• An individual who is either a resident of  Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.
• A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in  Florida, can serve as personal representative of a Florida probate estate.

• If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve.
• If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the intestate probate estate. If there is no will, your Florida probate attorney can help you determine if you are entitled to preference in the appointment of the personal representative.

In almost all instances the personal representative must be represented in the Florida courts of probate by aFlorida probate lawyer or attorney . Many legal issues arise concerning the Florida probate law, even in the simplest Florida probate estate administration.

The  Florida probate attorney for the personal representative advises the personal representative on rights and duties under the Florida law of probate, and represents the personal representative in Florida probate court estate proceedings. The Florida probate lawyer or attorney for the personal representative can not also serve as the Florida probate lawyer or attorney for the beneficiaries.

A provision in a last will and testament mandating that a particular Florida probate lawyer, attorney, or law firm be employed as the  Florida probate attorney for the personal representative is not binding on the personal representative.  The personal representative has the right to choose his or her own Florida probate lawyer.

The personal representative is required to use diligent efforts to give actual notice of the Florida probate and administration proceeding to “known or reasonably ascertainable” creditors of the probate estate, to afford them an opportunity to file claims against the Florida probate estate. 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.

If you need an experienced probate attorney in Florida to represent you as a creditor of a probate estate in Florida, please call us toll free at 866-510-9099.

The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate 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 probate 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, to determine whether an estate tax (commonly referred to as the “death tax.”) will be due for the probate estate to pay.

The personal representative may be required to file other returns on behalf of the Florida probate estate. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent’s death (including tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the Florida probate estate and may be personally liable for those taxes if not properly paid from the probate estate. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to  Florida real property, and in some instances in order to close the probate administration with the Florida probate court.

Regarding  Florida’s intangible tax, the Florida Department of Revenue may review the Florida probate inventory to determine whether the Florida probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For Florida probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to  Florida real property and in order to close a formal Florida probate administration.

If you need the representation of an experienced Florida probate attorney as a beneficiary of a probate estate in Florida, please call us toll free at 888-492-2468.

The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the Florida probate estate administration are due within 12 months from the date the tax return is due. This probate calendar date is usually extended by the Florida probate court because often the IRS’ review and acceptance of the estate tax return are not completed within that period.

Florida probate estates that are not required to file a federal estate tax return and that do not involve probate litigation may often close in five or six months and the property in probate can be distributed.

The probate fee for the personal representative is usually determined in one of five ways:

a)      as set forth in the last will and testament;

b)      as set forth in a contract between the personal representative of the Florida probate estate and the decedent;

c)      as agreed among the personal representative of the Florida probate estate and the persons who bear the impact of the probate fees;

d)      as the amount presumed to be reasonable as calculated under  Florida probate law if the amount is not objected to; or,

e)      as determined by the Florida probate judge, applying  Florida probate law.

Likewise, the probate fees for the Florida probate lawyer or attorney for the personal representative is usually determined (1) as agreed among the Florida probate lawyer or attorney, the personal representative of the Florida probate estate and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida law.

Summary Probate Administration is generally available under the Florida probate codes, if the value of the property in the probate estate subject to probate in  Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

If you need an experienced Florida probate attorney for a summary probate administration in Florida, please call us toll free at 866-510-9099.

Under Summary Probate Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Probate Administration by publication of notice in a local newspaper

Another alternative to Formal Probate Administration is “Disposition Without Administration.”  This is available if the Florida probate estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal probate 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 Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to record in  Florida. This procedure is used to establish title to  Florida real property. When admitted to record in any  Florida county  where the real estate is located, the “foreign will” serves to pass title to the Florida real estate as if the last will and testament had been admitted to Florida probate. This procedure is available only if either two years have passed from the decedent’s death or the domiciliary personal representative has been discharged and there has been no probate estate administration in  Florida.

If the decedent created a revocable living trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent’s Florida 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 Florida probate court where the decedent lived, giving information concerning the settlor and trustee. The counsel of a Florida probate lawyer  may help with probate and legal advice about the probate code and probate rules for the personal representative in this situation.

However, a revocable living trust, if properly funded, provides the opportunity to avoid probate.  Properly funded means that all probate assets are re-titled to the revocable living trust.  At the death of the grantor (settlor), the successor trustee has immediate access to the trust assets so that probate can be avoided, for all of its costs, delays and the public nature of a probate proceeding or court supervised guardianship.

The Florida estate settlement and probate lawyers and attorneys at The Coleman Law Firm have more than 30 years experience providing legal advice and working with personal representatives, beneficiaries, surviving spouses and the heirs to probate estates both with wills and no wills.  We also have significant experience working with creditors’ claims in probate administration in the Florida probate courts.  We recognize the need for efficient probate administration, and the importance of keeping our clients fully informed of each step in the Florida probate process and probate timelines.  We explain the Florida probate process to our clients and help them understand each step in the Florida probate process and why that step is necessary.

Our 30+ years of experience helps us help you avoid unnecessary delays, costs, and helps you resolve your probate needs quickly and efficiently. If you need an experienced Florida probate lawyer or attorney , to assist you with a Florida probate estate, please call us toll free at 866-510-9099, or contact your Jacksonville lawyer for probate at The Coleman Law Firm so that we can help you with your Florida probate needs.