(904) 495-0400 or
Our firm can advise the personal representative and provide probate services throughout all steps of the probate process, including:
- Drafting and filing the petition.
- Moving to name a personal representative.
- Helping to identify interested parties to the probate action.
- Advising personal representatives.
- Advising heirs.
- Advising potential heirs.
- Asserting claims of heirs.
The following is provided by The Florida Bar.
WHO IS INVOLVED IN THE PROBATE PROCESS?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate: •Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.
- Circuit court judge.
- Personal representative (or executor).
- Attorney providing legal advice to the personal representative throughout the probate process.
- Those filing claims in the probate proceeding relative to debts incurred by the decedent during his or her lifetime, such as credit card issuers and health care providers.
- Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and, sometimes as to federal gift, estate or generation-skipping transfer tax matters.
WHERE ARE PROBATE PAPERS FILED?
(Compliments of The Florida Bar)
The decedent’s will, if any, and certain other documents required in order to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county in which the decedent lived at the time of his or her death. A filing fee must be paid to the clerk. The clerk then assigns a file number, and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.
In the interest of protecting the privacy of the decedent’s beneficiaries, any documents that contain financial information pertaining to the decedent’s probate estate are not available for public inspection.
WHO SUPERVISES THE PROBATE ADMINISTRATION?
A circuit court judge presides over probate proceedings.
The judge will rule on the validity of the decedent’s will, or if the decedent died intestate, the judge will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate estate.
If the decedent had a will that nominated a personal representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated personal representative meets the statutory qualifications, the judge will issue “Letters of Administration,” also referred to simply as “letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.
If any questions or disputes arise during the course of administering the decedent’s probate estate, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written direction called an “order.”
WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”
The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:
- Identify, gather, value, and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisors.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family. •Distribute probate assets to beneficiaries.
- Close the probate estate.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
WHO CAN BE A PERSONAL REPRESENTATIVE IN ST. AUGUSTINE, FLORIDA ?
The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.
To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.
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 the personal representative.
WHO WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?
If the decedent had a valid will, the judge will appoint the person or institution named by the decedent in his or her will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.
If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.
WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on their rights and duties under the law, and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.
WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?
(Compliments of The Florida Bar)
One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.
The legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before making distributions to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.
HOW IS THE INTERNAL REVENUE SERVICE (IRS) INVOLVED?
The decedent’s death has two significant tax consequences: It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”
The personal representative may be required to file one or more of the following returns, depending upon the circumstances:
- The decedent’s final Form 1040, Federal Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
- One or more Forms 1041, Federal Income Tax Returns for the Estate, reporting the estate’s taxable income.
- Form 709, Federal Gift Tax Return(s), reporting gifts made by the decedent prior to death.
- Form 706, Federal Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.
The personal representative may also be required to file other returns not specifically mentioned here.
The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.
The estate will not have any tax filing or payment obligations to the State of Florida; however, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of January 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.
WHAT ARE THE RIGHTS OF THE DECEDENT’S SURVIVING FAMILY?
The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.
For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30% of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive his or her rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.
In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.
The existence and enforcement of these statutory rights requires knowledge about the applicable laws and procedures and is best handled by an attorney.
WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?
Florida law provides for several alternate abbreviated probate procedures other than the formal administration process.
“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.
Another alternative to the formal administration process is “Disposition Without Administration.” This is available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) up to $6,000 in funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.