Tag Archives: estate

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.


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.

Understanding Revocable and Irrevocable Trusts

attorney and clientsWhat is a trust?

A trust is a document, made legalized through the power of an attorney and application of law principles, which specifies the assignment of declared assets upon the death of an individual. A trust should not be used as a substitute for a will but instead, in conjunction with it. Furthermore, a trust helps protect the assets that the beneficiaries would receive and so as decrease the burden of estate tax. There are different types of trust and the most common is the living trust. This type of trust is activated while the person, who applied for it, is still living. The process taken here is simple. The person would just have to move the assets into the trust and they would immediately become a part of it.
There are two categories under a living trust. These are revocable trust and irrevocable trust. The difference between the two is very clear. Revocable trust can be changed or revoked while the other one is not. However, the definition of the two is quite intricate.

Defining Revocable Trust

A revocable trust is a legal document stating that a set of assets will automatically be directed to the declared beneficiary upon the death of the applicant or trust holder. Most of the time, revocable trust includes cash but it can also be tied up with a checking or savings account. Since it is revocable, the trust holder can change the terms of the trust anytime as long as he/she is still living. Also, the holder can access the assets in the trust in case of emergencies.

The word “revocable”, when applied to financial organizations such as the IRS, refers to bank accounts with payable-on-death provisions. Interested applicants can simply fill out the forms provided by the bank and state who will receive the funds contained in the account upon the applicant’s death. This provision works similarly like a trust. Also, this is a great account management scheme where the applicant is given the power to allocate his/her account.

Defining Irrevocable Trust

An irrevocable trust is a complex type of legal agreement. It is considered as a separate entity. Here, a federal tax identification number is required. This is usually filed by the tax attorney or the accountant. The applicant would have to go to the state’s Bureau if Internal Revenue and comply with the documents needed for this transaction.

Since the trust is irrevocable and is a separate entity, the creator of the trust will have no access to the assets deposited under it. These assets will also not be owned or could not be touched by the beneficiaries until they are released. For example, if the creator has established a $200,000 trust account and the agreed term is that $10,000 will go to the beneficiary every year, no one could receive and release the money prior to that term. So, the beneficiary would just have to wait another year before he/she will get the other $10,000 until such time that the whole account will be empty.

What type of trust will work for you?

An estate plan is important in order to properly assign one’s assets to intended beneficiaries. Estate planning may cover both revocable and irrevocable trust. Considering which one is right for you would entail an understanding on how you want your assets to be handled upon death, how flexible you would want them to be while you are still alive and what type of assets you will be leaving behind. Any of these trusts has different consequences and benefits. You can consult a legal consultant (such as an attorney) in order to have a clearer view on the type of trust that you can avail and their agreements as well.