Plantation Probate Attorney
In this article, we’ll break down:
- What is Probate?
- Qualifications of a Personal Representative
- 4 Types of Probate Administrations/Proceedings in Florida
- What Should a Personal Representative Expect During A Probate Administration?
- Do Personal Representatives Need an Attorney to Administrate an Estate?
- What To Look For When Hiring A Probate Lawyer?
- Do You Need a Plantation Probate Attorney?
No one likes to think about the day they’ll need to step in and serve as a personal representative for a loved one. What we often find, is that most personal representatives don’t fully understand the responsibilities they’ve taken on until they’re suddenly thrown into the role.
That’s why hiring an experienced probate attorney is one of the most important steps in the probate process.
Whether you’re looking to learn more about being a personal representative down the road or if you’re serving as an personal representative for a loved one who’s recently passed, here’s what you need to know about the probate process and what to look for in a probate attorney.
What is Probate?
When a deceased person passes away, their assets must be gathered, their debts must be paid, and any remaining assets must be distributed to the decedent’s beneficiaries. These steps make up a court-supervised process called probate.
Probate only controls those assets owned solely by the decedent at the time of his/her death. If the decedent was married and owned joint assets with a spouse, those assets immediately transfer to the surviving spouse without the need for a probate administration.
A probate administration allows for the legal transfer of ownership of any solely owned assets – including banks accounts, investment accounts, insurance policies, real estate, precious metals, crypto investments, etc. – to beneficiaries either according to the person’s Will if they have one or based on Florida intestacy law if no valid Will exists.
One of the most important roles of probate is to pay any debts owed by the decedent at the time of his/her death. Probate also allows the personal representative to pay creditors for any valid outstanding debts, including the IRS and state and local tax agencies.
Florida law (F.S. 733.707) sets forth, by enumerating different classes, the order of payment of expenses and obligations before assets are distributed to beneficiaries and creditor claims are paid. Those expenses and obligations include funeral expenses, court fees, and other costs related to the probate process, including attorney and personal representative fees.
Qualifications of a Personal Representative
Under Florida law, the personal representative can be an individual, bank or trust company. To qualify as a P.R., a person must be either a Florida resident or, if not a resident of Florida, a spouse, sibling, parent, child, or other close relative of the decedent.
Additionally, Florida law says any person who 18 years or older and who is “a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida.” Also, any bank or trust company incorporated under the laws of Florida, can serve as a P.R.
Note: Anyone convicted of a felony cannot act as a Florida personal representative. All prospective Personal Representatives in Broward County, including those living in Plantation, are required to undergo a criminal/credit investigation and must submit an Affidavit Concerning Criminal History.
Who Has Preference in Appointment as a Florida Personal Representative?
If the decedent had a valid Will, the judge will appoint the person or bank named in the Will to serve as personal representative. This is true as long as the person or bank is qualified to serve.
If the decedent did not have a valid Will, then the surviving spouse has first preference to be appointed by the judge to serve as a personal representative.
From Florida Statute 733.301:
Preference in appointment of personal representative.—
(1) In granting letters of administration, the following order of preference shall be observed:
(a) In testate estates:
1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
4 Types of Probate Administrations/Proceedings in Florida
Formal Administration: This is the most common form of probate and is a formal process for managing a decedent’s assets. Here, a personal representative (“P.R.”) is appointed by the court by was of the issuance of a “Letter of Administration” which grants the P.R. the authority to act as if he/she were the decedent. A P.R. can sell assets, negotiate with creditors, communicate with the IRS and otherwise act in the same manner as the decedent was able to do.
Note: A court may limit this authority by requiring the P.R. to obtain a special court order to perform certain tasks like sell real estate.
Summary Administration (Small Estates): This probate administration is used if a decedent owns less than $75,000.00 of assets, excluding homestead property, and has little to no debt, or if the decedent has been deceased for more than two years.
This administration is used when a resident of another state dies owning property in Florida and there is a need for a formal administration and the appointment of a Florida personal representative.
Here, a probate process normally begins in the state of the decedent’s residency and a secondary probate administration is commenced in the Florida county where the real property is located.
Disposition Without Administration (Small Estates): This is the least common probate process and is available if the decedent’s assets only include property that is exempt from claims from creditors, non-exempt personal property valued at less than the cost of healthcare bills over the past 60 days, and funeral expenses.
From Florida statute 735.301
Disposition without administration —
No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
There are other common issues related to probate which are handled by County Probate Clerk’s, including Broward County, including:
- Notice of Trusts – Under Florida probate law, the trustee of a Florida trust must file a “Notice of Trust” form with the probate clerk upon the death of a settlor of a trust.
- Statement of Claim – A Statement of Claim is a procedure used by creditors to establish the liability of a decedent (usually credit card companies).
- Caveats – A caveat is a document filed by a creditor or an interested party, (“caveator”), in which the Caveator requests that the court not admit a will of the decedent to probate or appoint a personal representative without formal notice on caveator or his/her designated agent and that caveator be given such additional notice as the Florida Probate Rules require.
What Should a Personal Representative Expect During A Probate Administration?
If you are appointed as a personal representative, then you should expect the probate process to involve a lot of paperwork and coordination with the court, the IRS, investment professionals, realtors, appraisers, creditors, beneficiaries, and other individuals and organizations depending on the level of complication of the decedent’s affairs.
Simple probates can take about six months. However, timing will vary widely on the circumstances of the case. In some cases, you may need to sell the decedent’s assets before you will have liquidity to pay creditors. Sometimes lawsuits arise that will have to be resolved.
Estate taxes can dictate timing, too. If you’re required to file a Form 706 for Federal estate taxes, then that part of the process can take, in some instances, years to settle depending on if the estate is audited by the IRS (audits don’t always happen though).
Note: In all Broward County probate administrations, including those involving residents of Plantation, the 17th judicial circuit requires all probates to follow specific procedures which can be found here. Be sure to check-out the useful Handbook for Personal Representatives.
Do Personal Representatives Need an Attorney to Administrate an Estate?
Under Florida law, the personal representative in a formal administration must be represented by a lawyer, which includes a formal ancillary administration. In all other administrations, including a summary administration and a deposition without administration, a probate lawyer is not required. However, a person filing either of these administrations must file the correct forms, which oftentimes can be found on the probate clerk’s website, and the documents must be file using the clerk’s online portal.
What To Look For When Hiring A Probate Lawyer?
Like many areas of the law, probate cases require an attention to detail and knowledge of a large body of law, which includes both statutory and case law.
An experienced probate attorney should have knowledge and/or experience with a variety of tasks and issues common to probates, including:
- Formal Administrations
- Summary Administrations
- Ancillary Probate
- Duties of a Florida Personal Representative
- Personal Representative Fees
- Property Passing to Heirs
- Wrongful Death Claims
- Debts Owed by and to the Decedent
- Foreclosure and Probate
- Sale of Real Property
- Creditor Claims
- Lost or Destroyed Wills
Bottom line here: If you need to hire a probate attorney, then find someone who is experienced and someone who is willing to spend the time explaining your rights, and obligations, whether you are petitioning to be the personal representative or you are a beneficiary or creditor in need of legal assistance.
Do You Need a Plantation Probate Attorney?
In Florida, the law requires that personal representatives have an attorney of record. The good news about having an experienced probate attorney by your side is that it can help you avoid some of the common pitfalls of acting as a P.R. including the misappropriation of estate assets, self-dealing, improper investments resulting in losses to the estate and claims of excessive compensation for serving as a personal representative.
An experienced probate attorney should help you understand your legal rights and the liabilities you’ll assume if a Letter of Administration is granted to you.
If you’re looking for the guidance and support of an experienced lawyer to help you with your probate case, contact us today or give us a call at (954) 880-1302 for a free case evaluation. We’ll listen to your case and explain your rights.