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How to File Probate in Florida

The term “probate” refers to the court supervised process of identifying and gathering the assets of a deceased person. The purpose of this process is to ensure that the estate of the deceased person is administered in a legal and orderly manner, in order to pay any outstanding debts that the person may have had, and distribute assets to the descendants/beneficiaries. In general, during the probate process the state uses a portion of the decedent’s assets to cover the cost of the process, after this, the state uses the remaining assets to pay all outstanding debts. If any assets remain after all debts are paid, they are distributed among the heirs of the deceased person, as stipulated in the decedent’s will, or according to the inheritance laws in the state if there is no will. However, some of the key procedures followed during the probate processes differ from state to state.

bereaved womanThere are two main types of probate administration under Florida probate law- formal and summary administration. In order to initiate the formal/court probate process in Florida, a family member/heir of the deceased person needs to file the necessary probate pleadings with the court. To file probate in Florida, you need to follow these steps:

• Submit the will of the deceased and the death certificate to the Clerk of Courts. You need to ensure that you submit the original will (not a photocopy).

• Determine the value of the probate estate- you need to calculate the value of the decedent’s estate before you file the appropriate probate pleadings with the court. If you do not know the market value of the probate estate properties, your attorney can help you determine the current value of different properties, and also let you know which of the decedent’s properties may be exempt from probate.

• Determine which probate administration process is most appropriate for you. There are different rules and procedures you need to follow/adhere to under the various probate administration processes. For instance, in order to use the summary/family administration process, the value of the deceased person should not have any debt and his/her estate must be below $75,000 (excluding the value of any real estate property). If the estate does not qualify for summary administration, you need to use the formal administration process. You need to hire a licensed probate attorney to represent you in the formal process unless you are the sole heir/beneficiary of the estate.

• Prepare and file probate pleadings with the appropriate court- under Florida law, you need to file probate in a court in the decedent’s county of residence. If the deceased had property in more than one county, you may have to file probate in more than one county. If you have a Florida. probate attorney, your attorney can prepare and file all the necessary probate documents for you. These documents include death certificate, oath of personal representative (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), Order admitting will to probate, Letter of administration, notice to creditors (sent to the decedents creditors by the personal representative)and tax documents.

Once you file probate, the probate process may last for three to six months depending on the facts of the situation. If your personal representative needs to sell some of the decedent’s real estate to settle some debts in the probate estate or has to deal with a lawsuit filed by decedent’s creditors, the probate process may last longer.

The smartest thing to do when involved in a Florida probate proceeding, is to find an experienced probate attorney. An attorney can speed up the process and help you avoid potentially costly mistakes.

 

Complicated State Laws Make Estate Planning Essential

Contrary to popular belief, estate planning for the future is not merely an antidote for the wealthy looking to escape taxes. Probate, property transfer, life insurance, annuities and inheritance can represent chaos without proper planning. Throw in family members, the Internal Revenue Service, state laws and legal officials and you have a bubbling cauldron of confusion. Estate planning gives you the power to manage your resources without interference.

By definition, estate planning is a process designed to help you manage and preserve your assets while alive, and to conserve and control their distribution after your death.

Your age, health, heritage, lifestyle, life stage, goals and other factors determine the special needs of estate planning. For example, you can have a small estate and may require specific people to receive particular items. Probably a simple will is all you need. Or you can have many responsibilities that require complex planning with sophisticated strategies to protect family members.

But keep in mind, a disability can affect anyone at any time and this is more than enough reason to consult a lawyer about drafting a will or estate planning.

Plans that Fit Every Family

The most basic plan that benefits every family is a living trust. Trusts and wills are the primary tools of estate planning as both allow you to decide who inherits your assets when you die, and who will administer, manage and distribute your estate when you’re gone.

The most common type of living trust, also referred to as family trust, is one that is revocable, which means that the customer has the power to amend or revoke the trust. The power of revocation or amendment is important to the customer, because we live in a changing world where financial and family circumstances often face modifications.

Advantages of a Living Trust

By funding a trust with your assets, you transfer those assets out of your name into the trust. Any new assets you purchase, you simply transfer those into the trust. You will become the trustee and the assets will be under your control. If you decide to move assets you do so as the sole trustee.

Upon your death, your successor trustee will take control, according to your written directions, without any involvement of the probate court.

The main advantage of a living trust is that the family avoids the need for costly and inconvenient court administration (Probate).

• Families can save thousands of dollars in the long run.

• Living trusts act as an organized administration that provides the privilege to carry out estate planning in private.

• Living trusts are private matters; probate cases are public record and open to inspection by any person.

Nuts and Bolts of a Revocable and Irrevocable Living Trust

Revocable trust, also referred to as a Living Trust is flexible and you can modify the provisions at any time. In other words, if you need to make changes down the road or have second thoughts like a change of beneficiary or switch trustees, you can easily modify the terms. The pitfall of a revocable trust is that with so much flexibility, funded assets could be considered your personal assets, which leave you vulnerable to creditors.

An irrevocable trust cannot be cancelled nor any assets removed once the documents are signed unless all beneficiaries and the court agree to dissolve the trust. It’s often impossible to accomplish this without good reason. However, in certain situations, an attorney may be able to request an amendment if there are changes to the beneficiaries.

Advantages of an Irrevocable Trust

Irrevocable trust offer several distinct advantages, especially for long-term health care planning; however, to really benefit without neglecting unforeseen elements, it’s wise to communicate with a Florida attorney. Consider the benefits of an irrevocable trust;

• Asset protection
• Shield assets from eligibility criteria when applying for government benefits like Medicaid and Social Security Supplemental Income (SSI)
• Possibility of avoidance of federal gift tax

Flexibility

The centerpiece of living trusts is often the special considerations, managed according to your pre-specified rules. These trusts can incorporate special features to handle various family dynamics.

These special approaches may include special needs trusts for the care of children or disabled family members, trusts for pets, custom arrangements for a “blended family,” often due to a remarriage. These trusts can specify guidelines that include children from previous marriages, adopted children, stepchildren, etc.., and provisions that protect the “waste” that of a child’s inheritance from creditors, and other fraudulent individuals.

Protecting Assets

Living trusts accomplishes the essential purpose of a will. Assets transfer to your beneficiaries smoothly, without the burden of probate. By avoiding probate with a living trust, it is almost impossible to contest your pre-specified directions.

Deciding Who Gets What and When

Many parents impose restrictions when estate planning for the future. Some provisions are not overly restrictive, but many protect the child’s inheritance, however big or small, until they reach a certain age.

• Limiting access to funds until child reaches anywhere from 18 to 25
• Giving beneficiaries a portion of their inherited principal at varied intervals
• Declaring who will share real property, and enforcing strict guidelines to protect from outside influences

Why You Still Need a Will

Seven out of ten individuals die without a will and most people don’t understand if you die intestate (without a will) your state will distribute your property according to state law. In addition, without a will family members will probably pay more than necessary in federal and state taxes.

Even if you have a living trust, a will is desirable to provide for the guardian of children, in the event there are no surviving parents or grandparents.

Many individuals go to great lengths to discuss their requirements after death and yet they neglect to enforce their plans legally, often causing their family to weather the burden of probate. Consulting with a Florida lawyer will ensure you haven’t neglected any essential decisions. Estate planning for the future is simply taking control to protect your assets and detail your wishes before someone else makes the decisions for you.

5 Elements of a Good Estate Plan

Everybody would die one day. Man is different from other animals because he knows beforehand that he will die someday. Knowing this is very important to plan for the future. What will happen to your loved ones after your demise. Sure, no one likes to dwell on their demise, but you must plan ahead to avoid any confusion or legal issues after you have gone.

mother and daughters

What will happen to all that you have collected during the lifetime, in the guise of properties, stocks, bonds, securities, fixed deposits, jewelry, vehicles, furniture, lands, insurance policies and all other valuable items? Why did you amass them in the first place? Surely, you wanted your loved ones to have all of these items and enjoy their lives, once you have left this world. All these items that a person own is called an “Estate”. An estate plan is a means of passing these valuable items to the next generation.
There is a myth in the world that only wealthy people will need a estate plan. Estate planning is essential for the super wealthy, as well as, the not so wealthy people. Estate planning is the establishment of a management plan to deal with all your assets, after you have left this world. The owner of the assets is referred to as the “testator” in the estate document. This article will highlight the five elements that should be included in a good estate document.

1. The most important point is to see that the testator’s wish in distributing his or her assets are clearly stipulated in the document. No room should be left for someone else to interpret it differently after the testator’s death. This will go against his or her wish of distributing the assets equally to the members of the immediate family.

2. The opportunities to challenge the document should be minimized. If a beloved one is left out of the estate planning by mistake, he or she may stake a claim once the testator is dead and gone. This type of situation will cause a rift between family members, and tarnish the good name of the testator too. You must be aware of this before finalizing the plan.

3. The legal and familial responsibilities of the testator should be given high priority when preparing the estate document. The other responsibilities such as social and official should come right after this. Any charitable givings that the testator was engaged in, should also be included in the document.

4. The document should allow the beneficiaries to protect the inheritances from creditors or estranged spouses. They should be given the freedom to chart their own path in tax related matters, going forward.

5. The most important factor of a good estate document is to prepare it so that the testator and all other beneficiaries can understand it clearly. Most of the plans lack this clarity, and the beneficiaries end-up spending more on professional fees in order to get a clarification that they can understand.

Estate Planning Lawyers in Fort Lauderdale, Florida

The Importance of an Experienced Florida Probate Attorney

grieving womanIn Florida, once an individual owns assets during the time of his or her death, the process of transferring these assets to the person’s beneficiaries is known as probate. The process of probate can be very overwhelming and confusing especially since the family members and beneficiaries of the deceased are grieving. Because of this, hiring an expert and experienced probate attorney can be a very good move. In order to start a probate case, it is important to prepare a file a Petition for Administration with the Florida Probate Court, which is situated in the country where the individual resides during the time of death. The filing will start the formal administration process.

The Florida probate cases can be handled in two different ways. If the assets of the decedent are worth more than $75,000, it is essential to proceed to the formal probate administration process. Nonetheless, if the assets are valued less than $75,000, then it is possible to use a summary administration in order to make the process less complicated. The process of the formal administration probate will also include a personal representative and Letters of administration. However, in the state of Florida, formal administration is considered to be the most common method of probate.

However, a legal process of going through the probate court is always necessary regardless of the probate method that is used. This is why hiring a probate lawyer or attorney is considered necessary. The process will include a lot of legal issues that any lay man would find confusing and perplexing to understand. The attorney will be present to help guide the client throughout the process and handle all the important and necessary requirements.

In other cases, once the time of death of a person has already been two years or more ago regardless of the value of the assets, a summary administration is highly possible. However, there are also times when the estate is required to go through formal administration even is the worth of the assets are under $75,000.Once an estate is involved in a legal matter, a formal administration process or method is necessary. This is also applicable once the decedent owes any money to creditors. These are the important matters that should be discussed with the Florida probate lawyer.

Each and every probate case is considered unique. This is why it is difficult to know when a case will be tied up to the probate. However, the amount of time that a probate administrator will take will also depend on how diligent he or she is in making the process move. There are times when it is already necessary to sell the real estate in order for the probate to be settled. Aside from this, a contested will or any disputed claims can also prolong the entire probate process. Nonetheless, an average case can take approximately 5 to 6 months to finish.

There are a lot of things that should be taken into account once an estate goes to probate. It is good to know that an expert and experienced probate attorney from Florida can be present to help make the process simpler. In other words, the probate process is something that should be left in the hands of a good and reputable attorney.