Everything You Need to Know About Wills & Probate in Florida

Have you recently lost a loved one and are dealing with the wills & probate process in Florida? This comprehensive guide on Florida probate laws will help you understand the steps you need to perform to receive your inheritance. Probate is a legal process in which property is transferred from the deceased individual’s name to their living relative or persons legally entitled to receive it. This guide covers Florida probate rules that determine who might receive the deceased’s properties in the state. It explains the probate process at length to help you follow the path to transfer your deceased individual’s assets to your name. 

Let’s explore Florida probate laws in detail!

What Is Probate?

Also known as estate administration, probate is a court procedure that transfers the assets owned by a departed individual to living people. When a person dies in Florida, the assets they possessed when they were alive go to their family. Alternatively, if they have a will, their assets go to the beneficiaries mentioned in that will. 

In probate, the deceased individual is referred to as the “decedent.” Everything the decedent owned at the time of their death is collectively mentioned as the “estate.” A decedent’s estate can include real estate, bank accounts, jewelry, vehicles, tools, guns, or other items they owned when they died. If a decedent had prepared a valid will during their life, that document decides who will head the probate process and who will receive the decedent’s estate upon their death. If the decedent did not have a will, their estate would be divided in accordance with Florida Statutes amongst their next of kin, known as the intestate heirs. 

Probate is required even when a decedent drafted a valid will before their death. When a person with a will dies, a probate judge “admits the will” to probate by ensuring the will is valid. Under Florida probate rules, the judge can only transfer the estate according to the decedent’s will after the estate is opened in court. 

The persons mentioned to be receiving the estate in the will are known as “beneficiaries,” and “heirs”. The next of kin often receives the estate in the absence of a will. Whether a person died with or without a will, the court is tasked with the responsibility of ensuring that the correct heirs or beneficiaries are identified to receive the decedent’s estate. 

Two Types of Probate Administrations

Florida has two kinds of probate administration – summary and formal. Summary administration is a simplified process, while formal administration is needed for particular estates that require the services of a personal representative or are simply too extensive for a summary administration.  

Once the heirs or beneficiaries of the estate are recognized, the correct probate documents are submitted to the court so that the judge can sign orders allowing the transfer of the estate. Before the estate is distributed, the probate judge must be satisfied that all relevant parties are given appropriate notice, eligible estate creditors are identified, and all disputes among the beneficiaries or heirs are resolved. 

Even though chapters 731-735 of the Florida Statutes contain Florida probate laws, each county in the state has specific rules that need to be met before the court allows a case to move forward. Mario Gunde Peters & Kelley has the experience to seamlessly navigate the estate administration process in Brevard and surrounding counties in Florida to secure court orders in your favor.  

What Assets and Properties Go Through Probate in Florida?

According to Florida probate law, all assets owned by a decedent are subject to probate. The only exception to this law is a property with a named beneficiary or rights of survivorship. For instance, a retirement account, a life insurance payout, and a bank account with a “pay on death” designation are ideal examples of properties with named beneficiaries. 

Similarly, real estate with a deed indicating that its surviving co-owner will take full ownership interest from the decedent when they die is the perfect example of a property with rights of survivorship. Properties bought by a married couple usually have rights of survivorship in Florida, even if that particular language is not stated in the property’s deed. This kind of survivorship is known as tenancy by the entirety. The title will automatically transfer to the surviving spouse if one spouse dies. 

According to the Florida Probate Rules, if a property or asset does not have a right of survivorship or named beneficiary, it will need to go through probate to change ownership. Real estate, vehicles, bank accounts, and personal properties often go through this process. To determine if a particular financial account is subject to probate, one must contact the financial institution. To determine if real estate is subject to probate, a qualified lawyer should study the property’s deed. Attorneys at Mario Gunde Peters & Kelley, offer comprehensive deed examinations for their clients’ wills and probate cases. 

Probate Jurisdiction in Florida

Florida Statute section 733.101 controls the venue of a probate case in the state. If a decedent was a resident of Florida, their probate case should be filed in the county where they resided. For residents who lived out of state, a probate case may be filed in a country where they owned property.

All probate cases in Florida are handled by circuit courts. Florida courts can only transfer property located within the state. 

Moreover, a probate court only has authority over property owned by the decedent. With that said, a circuit court might freeze assets it suspects to have been owned by the decedent until it has determined their legal ownership. When completing probate in Florida, clients do not necessarily have to come to court. When hearings are required, clients can participate via telephone or video conference. 

Ancillary Administrations for Out of State Decedents

Since Florida is a popular vacation spot, many individuals own property in the state without being residents. Additionally, many people who move to Florida might continue to own properties in their original states. For people who own properties in several states, multiple probate administrations need to be completed.

Upon the decedent’s death, a domiciliary probate case will be filed in the state where they lived. Additionally, an ancillary probate case may need to be filed in the state where they were not residing but owned properties. Attorneys in each state will coordinate with each other to ensure that all of the decedent’s properties are accounted for and legally transferred to their heirs or beneficiaries. 

Ancillary probate administrations are quite common in Florida. The Florida Statute section 734.102 governs them. If you have any questions or concerns related to ancillary probate administrations, connect with our lawyers at Mario Gunde Peters & Kelley. 

What Is Considered to Be a Valid Will in Florida?

A will is a document that designates the individuals who will receive a decedent’s estate. Florida law demands that a will must be signed by a testator, the individual writing the will, and two witnesses to be enforceable in a court of law. The testator should either sign the document in front of the witnesses or tell them that they have already signed the will. The witnesses must sign the will together in each other’s and the testator’s presence. You can find the rules related to the execution of wills in Florida Statute 732.502. 

A will does not have to be notarized for it to be deemed valid. However, notarized wills are preferred by the court since it is easier to admit them to probate court. A notarized will is known as a self-proved will. If a will is not notarized, one of the will’s witnesses has to make a statement to the probate court confirming their role as the witness. There is no such requirement for a notarized will. So, it is best to have wills notarized as soon as possible. You can find the rules for self-proved wills in Florida Statute 732.503. If you need to submit a Florida will in probate court, call Mario Gunde Peters & Kelley.  

What Happens If You Die in Florida Without a Will?

When an individual dies in Florida without a will, their estate goes to their spouse or closest kin. Florida Statute sections 732.102 and 732.103 dictate how a decedent’s property is divided upon their death without a will. This procedure is known as intestate succession. 

If the decedent was married and had no children, their estate would go to their spouse. If they were married with children, their estate would still go to their spouse. However, if either of the spouses had children outside of the marriage, half of the decedent’s estate would go to their spouse, and the rest of it would be divided equally amongst the decedent’s children. If one of their children is deceased, their share is divided amongst their descendants. 

If the decedent was unmarried but had children, their assets are divided equally among the children. If they did not have any children either, but their parents are alive, their estate will be divided among their living parents. If their parents are also deceased, the decedent’s estate is divided among their siblings. If the decedent did not have any siblings, their property is divided equally among their mothers’ and fathers’ sides of the family. 

Creditor’s Claims in Florida’s Probate Cases

The probate process also involves providing the payment of the creditor’s claims. However, you should never pay the debts of the decedent without consulting with a qualified probate lawyer since not all debts are eligible for payment after the decedent’s death. 

Moreover, you should not use your money to pay your debts. For decedents who died more than two years before their estate went to probate, you should not pay any debts since all claims will be barred according to Florida Statute section 733.710. However, this two-year limit on creditors’ claims does not apply to real estate mortgages or creditors who filed a claim within the 2-year period. 

According to Florida probate rules, the process of handing estate debts will vary based on the kind of probation administration you will be using. For instance, in a summary administration, all known debts should be paid from the decedent’s eligible, non-exempt assets. 

In a formal administration, creditors will receive notice of the estate probate administration, allowing them to file claims timely to remain eligible for repayment. This notice is filed in a newspaper in the county where the decedent resided. It alerts prospective creditors that they have 90 days to file their claims in the probate case to stay eligible for repayment. 

Established creditors receive a copy of the newspaper notice from the personal representative and are given 30 days to file their claim. If they fail to file a claim within the given time, their claim is waived. When debt claims are filed in a formal estate administration, the personal representative of the decedent has the power to object to the claim if they believe it is invalid. If a decedent had several creditors when they were alive, formal administration is the best process to avoid paying the creditors who fail to comply with the claim process. 

Exempt Properties

When a decedent has a spouse and children, some of their assets, including their homestead property, household furnishings, two vehicles, and up to $1,000.00 in personal property, are exempt from debt claims and should not be utilized to pay creditors’ debts. Your probate attorney must identify exempt properties to the court so that the judge understands which property is not available to pay the claims. Exempt properties pass directly to the decedent’s spouse or children. Only the non-exempt estate is available to creditors who file claims for the money owed to them by the decedent. 

Florida Probate Law on Homestead Property 

Florida probate law ensures that a decedent’s homestead, i.e., the house they resided in and owned, should not be taken by estate creditors. It means that the house can remain with the decedent’s heirs or beneficiaries upon their passing. However, there is one exception to this rule. Consensual liens such as the mortgage on the property, money owed to contractors who worked on the property, or tax debt related to the property might still be levied against the homestead real estate. 

Florida Constitution’s Article X, Section 4 describes the requirements for a property to be considered a protected homestead. It should be owned by the decedent, inside city limits, occupy one-half acre, and contain the primary home of the decedent. Outside of the city limits, this homestead protection extends to one hundred and sixty acres of land containing the decedent’s primary home. The probate law has made this distinction between protecting farmers and preventing the abuse of this Florida probate law by people within the city limits. 

If the property is to be considered the decedent’s primary residence, they must live in it with the intent to make it their permanent residence. The law does not require a certain time that the decedent lived in their home before it became their homestead. Houses owned by irrevocable trusts and companies do not qualify for homestead protection. However, a home owned by a revocable trust can qualify for homestead protection. 

Condominiums, mobile homes, and single-family homes can also qualify for homestead protection. Even boats and RVs can qualify for it, but they must be fixed to the land or a dock and remain immobile to qualify. 

Apart from the protections given to homestead properties by Florida law, the law places restrictions on how a person can give away their homestead in their will. If an individual has a living spouse or minor children, they cannot leave their homestead to anyone except their spouse. If a decedent with these heirs has a will inadequately devising their homestead property, that part of their will be invalid. 

Moreover, there are differences between how a normal asset passes under the intestate succession rules and how a homestead property passes. If an individual dies with a spouse and minor children, the spouse will receive a “life estate” in the property, i.e., the right to live there for the remainder of their life. The descendants in being, i.e., the decedent’s children, receive the remainder interest and the title to the property once the decedent’s spouse dies. 

If a decedent did not have minor children, interest in the home would be transferred based on the intestate succession rules unless the property was devised to the spouse. If the deceased did not have a spouse, their homestead property would be devised to the individual they mentioned in their will. If they did not write a will, the property would be subject to the usual intestate succession rules.

Summary Administration

Summary probate administration is more affordable, less involved, and quicker than formal probate administration. To qualify for summary administration, an estate must belong to a decedent who died over two years ago or have less than $75,000 in non-exempt assets. The latter only applies to descendants who died within two years. 

Exempt property is not counted in the $75,000 threshold. It means that if a decedent had a protected homestead estate and two personal vehicles along with a bank account with $74,000 in it, their estate would qualify for summary administration since the non-exempt asset will be less than $75,000. If the decedent passed away over two years ago, Florida probate law does not place any limit on the value of their estate that can be transferred via summary administration. 

For summary administration, you have to file a petition with the court, which then gives formal notice of the court proceedings to the interested parties, such as the heirs or beneficiaries and the creditors, through certified mail. In the case of unmarried descendants past 55 years of age, the court also notifies the Agency for Healthcare Administration. These parties get 20 days to object to the petition. They may sign waivers agreeing to the probate process to avoid the 20-day waiting period. 

Most Florida counties also require an affidavit of heirs from the petitioner listing the decedent’s relatives. Some counties also demand an affidavit of criminal history. When the court has all the needed pleadings and has sent out the notice to the parties, the judge issues an Order of Summary Administration. It is a legal document that officially transfers the estate’s possession to the heirs or beneficiaries. You can review the rules of summary administration in Florida Statutes’ Chapter 735.

The downside of this type of probate administration is that it does not allow for the appointment of a personal representative who can facilitate business and legal dealings on behalf of the estate. 

Formal Administration

Formal administration is undoubtedly the more involved type of Florida probate. It is needed for an estate with non-exempt assets valued at more than $75,000 in cases when a decedent passed away less than two years ago. Formal administration is also needed when a personal representative is required to settle the estate and affairs of the decedent. 

A personal representative, known as an executor in other states, is an individual the court appoints to act as the legal representative of the estate. They have the power to do anything the decedent would have been able to do had they been alive. Their duty is to ensure the estate’s fair distribution between the heirs/beneficiaries and creditors. A personal representative is required when an investigation into the decedent’s assets needs to be completed or when lawsuits need to be filed on behalf of the estate. 

The initial step in a formal administration is to appoint a personal representative. Interested parties are noticed via certified mail to appoint a representative. After their appointment, the interested parties receive an additional notice known as a Notice of Administration. It lets them know that the case has been opened.  

A formal administration remains open even while the decedent’s property is being collected, used to pay legitimate debts, and then distributed to their heirs or beneficiaries. Formal administration includes a 90-day notice to creditors who have no claim over non-exempt assets under normal circumstances. The personal representative has the responsibility to ensure the legal transfer of the decedent’s estate to the entitled parties. 

Personal Representatives in Florida Probate

The first step in appointing a personal representative is determining who can act as one. If the decedent had a will, that document will state who would be preferred to serve as the representative. The first priority will be the person nominated in the will, the second will be the person nominated by the majority of the beneficiaries, and the third will be the best-qualified beneficiary in the will.

When there is no will, Florida Statute 733.301 will determine who has the preference to act as the personal representative. If the decedent was married, the spouse would be preferred to act as the personal representative. If the decedent was unmarried, the first priority would be the person nominated by the majority of the decedent’s heirs, and the second priority would be the best-qualified heir. 

The chosen personal representative will file a Petition for Administration with the circuit court that has the jurisdiction over the estate. They must take an oath to administer the estate lawfully. If the personal representative is accepted by the court, they are given Letters of Administration, which give them the power to administer the estate. Sometimes, personal representatives are demanded to pay a bond. This requirement is typically waived when the personal representative is the decedent’s family member.

Responsibilities of the Personal Representative

Here are the specific responsibilities the personal representative must complete during the estate administration with the help of their lawyer:

Serve Notice of Administration

The first thing the personal representative must do is serve a Notice of Administration to the vested parties, including the decedent’s spouse, heirs/beneficiaries, and other individuals who might be entitled to their estate in accordance with Florida Statute 733.212. 

Take Inventory

The personal representative is also responsible for collecting and establishing the estate assets’ value. They must send a copy of the inventory to interested parties. If a beneficiary/heir requests a written explanation of how the value was determined, they will have to provide the explanation and appraisals to them.

Open a Safe-Deposit Box 

Florida probate law has specific requirements to open and take inventory of the contents in a safe-deposit box containing the decedent’s property. The personal representative must open the decedent’s safe-deposit box only in the presence of one of the institution’s employees or the presence of the personal representative’s attorney of record. Every individual present must verify the box’s contents under penalties of perjury by signing a copy of the inventory. 

Secure the Decedent’s Property 

Florida’s probate laws give the personal representative control of the decedent’s estate. They must act reasonably to protect and preserve the decedent’s assets for the benefit of the vested parties during the administration. The personal representative will manage the estate until the court resolves the creditors’ claims and makes the final distributions. 

Serve Notice to Creditors

The personal representative has to publish a notice to the creditors unless their claims are barred. They must also identify reasonably ascertainable creditors and give them the time to file their claims for payment. They should also challenge any false debts by filing an objection.

Litigate on the Estate’s Behalf

The personal representative has to manage the litigation if the estate is being sued or suing someone. For instance, if the estate is accusing someone of causing the decedent’s death, the personal representative should file a wrongful death action against the negligent party. 

File Taxes When Necessary

If the estate reaches the threshold for active federal estate taxes or produces income, the personal representative will have to file taxes on its behalf. Florida does not have an income or estate tax, so the only applicable taxes are federal taxes. If the estate assets amount to less than 12.06 million dollars (in 2022), the estate will not have to pay any tax. 

If the estate remains open for a long time and produces income via investments and rental properties, it might be subject to income tax. The threshold for income taxes is $600 per year. When it is necessary to  pay taxes on an estate, it is best to involve a CPA (certified public accountant) experienced in estate taxes. 

Distribute Estate Assets

Once the personal representative has paid valid debts and estate administration costs through the estate assets, they can make the final distributions to the heirs/beneficiaries through payment or transfer of property. If the estate has a bank account, the personal representative will write checks from that account. If a law firm is holding estate assets in a trust, they will distribute those. For land and other assets, the personal representative will sign transfer documents. The personal representative and the personal representative’s attorney may be paid a percentage of the estate from the estate’s assets pursuant to the statute, as their fee for the services they provided to the estate. 

Close the Estate

Once the personal representative has distributed the estate to the beneficiaries/heirs, the estate can be closed, and the personal representative can be discharged. 

Avoiding Probate in Florida

If you carefully plan your finances, your family can avoid probate after your death. It allows assets to be available and free from creditors’ claims. Here are some effective ways to avoid probate in Florida:

Pay-on-Death Beneficiaries for Financial Accounts

By designating a person or multiple people to receive a financial asset or account upon your death, you can avoid probate for that asset. Money from that account will directly go to the beneficiaries listed on it, bypassing probate. You can add pay-on-death beneficiaries to your financial accounts easily.  

Rights of Survivorship or Lady Bird Deeds

You can create a lady bird deed or an enhanced life estate deed for your real estate. It will enable you to designate someone to receive a parcel of your land after your death. Similarly, you can include the rights of survivorship in the language of a deed to enable a co-owner to have full ownership of an asset after your death. 

Trust-Based Estate Plans

With a trust-based estate plan, you can avoid probate by putting your assets in a trust that will get transferred automatically to a successor trustee after your death. You can leave directions to your successor trustee in the trust regarding how you want your property to be divided. Trusts offer asset protection benefits for your heirs. 

What Happens to a Child’s Inheritance in Florida?

A child’s inheritance is subject to specific laws to ensure its protection. Their natural guardians might collect an inheritance of up to fifteen thousand dollars for the minor. If the inheritance exceeds that amount, the court will appoint a property guardian, who can be the child’s parent. The guardian will be responsible for filing an accounting of the child’s assets annually with the court until the minor turns 18. 

If you intend to leave your property to a minor child, you can avoid guardianship via a trust-based estate plan. Name the child as a trust beneficiary to ensure a successor trustee can provide funds for the child as required upon your death until the child turns 18 and receives their full inheritance.  

Inheritances and Government Benefit Eligibility for Disabled Individuals

Many disabled individuals depend on government benefit programs at some point in their lives. Specific programs, such as Medicaid and SSI, are subject to asset thresholds. It means that if an individual receives government benefits and puts enough money in the bank, they stand to lose their benefits. There are threshold limits for earnings and assets depending on whether you are single or married, and program recipients who deposit more than this amount into their account may lose their benefits. 

Medicaid and SSI often give thousands of dollars each month in financial and medical assistance. Losing these benefits may result in inheritance depletion. That said, federal law enables people who receive these benefits to create a special needs trust, also called a supplemental needs trust, which allows them to enjoy their inheritance without losing their benefit eligibility. 

If a disabled individual puts their assets in a special needs trust, they can access those funds to supplement their quality of life, such as for personal grooming,  dining out, and buying consumer goods and vehicles, without losing their eligibility for benefits. These trust funds are meant to supplement the government benefits they receive. So, a disabled individual cannot spend them on things such as rent, medication, or groceries or risk losing their benefits. 

Probate Litigation

When estate administration results in disagreements, attorneys will litigate to achieve their client’s objectives. Most Florida probate cases get resolved without substantial litigation. Lawyers litigate only when parties cannot agree on vital aspects of the probate case, such as who should serve as the personal representative, the validity of the decedent’s will, and the fair division of assets. 

Litigation for Personal Representative Appointment 

In choosing the personal representative, the court will determine preference. If two people have an equal preference, they might serve as co-personal representatives. Alternatively, they might ask the court to choose which individual is more qualified. The court will consider their educational background, criminal history, and their relationship with the decedent while choosing a personal representative. 

Contested Wills

If the will is contested, the court will determine its validity after hearing arguments from all sides. A decedent’s will can be contested as lacking testamentary capacity, being technically deficient, being fraudulent, i.e., forged, or written under undue influence. 

Here are two categories of fraudulent wills in Florida:

• Inducement Fraud: The decedent was intentionally misguided regarding vital matters that affected the decisions they made in their will.
• Execution Fraud: The decedent was made to sign the will under the pretense they were signing some other document.

   

Undue influence is different from fraud and is used to invalidate a will when someone benefiting from the will had an undisclosed relationship with the decedent and procured the document for them to sign. 

Lack of testamentary capacity is when the decedent was not in control of their mental faculties when they signed the will. It could be a result of drugs, dementia, or other reasons affecting their cognition. 

Estate Administration Litigation

After the commencement of a formal estate administration, if a beneficiary or heir believes that the personal representative is not fulfilling their responsibilities, they might have them removed. The grounds for removal might include misappropriation of the estate and failure to protect and secure the estate of the decedent. In some instances, the court might appoint an administrator ad litem to assist the personal representative in administering the estate instead of removing them.

Florida Probate for Florida Wrongful Death Cases

When a person’s death is caused by negligence, the liable party can be sued for wrongful death. In Florida, the personal representative is responsible for pursuing the wrongful death claim. They will hire an attorney to sue the liable party in civil court. You can hire a Florida probate lawyer to work with the plaintiff’s firm and insurance companies throughout the state to facilitate wrongful death administrations. 

Under Florida probate rules, wrongful death settlement proceeds or damages for wrongful death go to the decedent’s spouse if they were married without children. If the decedent had a spouse and children, they would receive their shares of the settlement proceeds. If they were a child, their parents would receive the settlement. If they were unmarried and had children, their children would receive the settlement. 

Apart from bringing the wrongful death lawsuit, the personal representative also must allocate the settlement among the eligible survivors. Debt creditors cannot stake their claim on the survivors’ settlement amount. 

What Does a Florida Probate Lawyer Do?

Hiring the right probate attorney can help you experience a smooth probate administration. . An experienced Florida probate lawyer will educate you about the law that applies to your case, present the case in the probate court, and secure the best result in the court. The probate process in Florida can be very complicated and full of pitfalls if not handled correctly. 

You should hire a firm and probate lawyer who has the experience and knowledge to handle estates and probate administrations in Florida. Mario Gunde Peters & Kelley have the attorneys you need to see your case through and help you end up with favorable results in your probate case.   Call today to speak to an attorney about your probate matter.