Probate in Florida
1. WHAT IS PROBATE IN FLORIDA?
Florida probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries who are legally entitled to them either through the decedent's last will and testament, or through the Florida law of intestacy. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
Florida law of probate establishes two types of probate administration:
1. Formal Administration, involving estates with a value of more than $75,000, with which most of this information discusses and
2. Summary Administration, which involves estate with less than $75,000 of non-exempt assets, or in which the decedent has been dead for more than two years.
Florida probate law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."
2. WHAT ARE FLORIDA PROBATE ASSETS?
Generally, probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:
• a bank account in the sole name of a decedent is a Florida probate asset that is subject to probate, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and not subject to probate administration;
• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and not subject to Florida probate, but a policy payable to the decedent's estate is a Florida probate asset and will be subject to the probate court in Florida;
• real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is Florida exempt homestead) and subject to probate, but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and avoids probate;
• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative of the types of assets that are subject to probate in Florida.
3. WHY IS FLORIDA PROBATE NECESSARY?
Probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida probate also serves to transfer assets from the decedent's individual name to the proper beneficiary of the probate estate. Florida has had probate laws in force since becoming a state in 1845. Florida probate law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament.
1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendents share the remaining half of the probate estate.
2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half of the probate assets.
• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the Florida probate estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida intestacy law provides for further disposition if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions under Florida probate law for Florida exempt homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding exempt Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida exempt homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida homestead outright.
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often involved in the probate process:
• Clerk of the Circuit Court (See Question 7) for Collier County, or the county in which the decedent resided at the time of death, is the probate clerk.
• Circuit Court (acting through a Circuit Court Judge, See Question 8) for Collier County, or the county in which the decedent resided at the time of his death, is the Florida court of probate.
• Personal Representative of the Florida probate estate, is the executor of the Florida probate estate (See Questions 9 through 11).
• Florida probate attorney for the Personal Representative (See Question 12).
• Claimants (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Beneficiaries of the Probate Estate (See Question 17).
• Trustee of Revocable Trust (See Question 21).
7. WHERE ARE FLORIDA PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, for Collier County, located at 3315 Tamiami Trail East, Naples, Florida 34112, or for the county where the decedent lived. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate document, probate records, and other probate papers filed with the probate clerk for that probate administration.
8. WHO SUPERVISES THE PROBATE
ADMINISTRATION IN FLORIDA?
A Circuit Court Judge presides over Florida probate proceedings. The probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters." This probate document shows to the world the authority of the personal representative to act on behalf of the probate estate. The probate Judge also holds hearings when necessary and resolves all questions raised during the administration of the probate estate by entering written directions called "orders."
9. 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 probate court to be in charge of the administration of the probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."
The personal representative is directed by the Florida court of probate to administer the probate estate pursuant to Florida probate law, the Florida probate code, and the Florida probate fules. The personal representative is obligated to:
• Identify, gather, value and safeguard probate assets and file with the probate court a probate inventory of the estate.
• Publish a "notice to creditors" in a local newspaper, giving notice to file with the probate court the probate court forms for claims and other probate papers relating to the probate estate.
• Serve a "notice of administration" on specific persons, giving information about the probate estate administration and giving notice of requirements to file probate forms with the Florida probate court for any objections relating to the estate administration.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the probate timeline by which their claims must be filed with the Florida probate court.
• Object to improper claims and defend lawsuits brought on such claims in the court of probate.
• Pay valid claims of the probate estate.
• File tax returns for the probate estate and the decedent.
• Pay taxes of the Florida probate estate.
• Employ necessary probate professionals to assist the personal representative such as a Florida probate attorney, accountants, appraisers, and others.
• Pay administrative expenses of the probate estate.
• Distribute statutory amounts or assets to the surviving spouse or family as required by the Florida probate code, the Florida probate rules, and other provisions of the Florida law of probate.
• Distribute assets to beneficiaries of the probate estate as directed by the last will and testament if there is a will, and if there is no will, then according to the Florida instestacy statute.
• Close probate administration with the Florida probate court.
• The personal representative could be an individual, bank, or trust company, subject to certain restrictions as provided by the Florida probate code, the Florida probate rules, and other Florida probate law.
• An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives of the decedent, can serve as personal representative of the Florida probate estate.
• 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 personal representative of the Florida probate estate.
• If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve.
• If there is no will and testament, pursuant to the Florida probate code, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the intestate heirs of the probate estate.
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
In almost all instances the personal representative must be represented by a Florida probate lawyer or attorney. Many legal issues arise, even in the simplest Florida probate estate administration that require sound legal advice.
The Florida probate attorney for the personal representative provides legal advice to the personal representative on rights and duties under the Florida probate law, the Florida probate code, and the Florida probate rules, and represents the personal representative in estate proceedings before the Florida probate court. The Florida probate attorney for the personal representative is not the attorney for the beneficiaries of the probate estate.
A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as Florida probate attorney for the personal representative is not binding on the personal representative.
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of probate proceedings, a creditor can file a legal document called a caveat with the Florida probate court. Upon publication of notice to creditors a creditor or other claimant may file with the court of probate a probate court form document called a "statement of claim" against the estate with the probate Clerk of the Circuit Court where the Florida probate estate is being administered. This claim is generally required to be filed within the first three months after publication of a prescribed notice in a countywide newspaper. This three-month probate timeframe is often referred to as the "non-claim period." The personal representative or any other interested person in the probate administration may file with the probate court an objection to the statement of claim, after which the claimant must file a separate independent lawsuit against the estate in the probate court to pursue the claim.
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."
The personal representative may be required to file the following returns, depending on income of the decedent, income of the estate and size of the estate:
• Final Form 1040 income tax return, reporting income for the decedent's final tax year.
• One or more Form 1041 income tax returns for the estate, reporting income for the estate.
• Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.
• Form 706 federal estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate.
The personal representative may be required to file other returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).
The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court.
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. A federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."
Regarding Florida's intangible tax, the Florida Department of Revenue may review the inventory to determine whether the estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.
For probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a premarital or post-marital agreement to the contrary, a surviving spouse may have Florida exempt homestead rights, spousal elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have exempt Florida homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate lawyer or estate planning attorney.
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under Florida probate law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.
18. HOW LONG DOES FLORIDA PROBATE TAKE?
For probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the probate court, after notice to interested persons.
The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the estate tax return are not completed within that period.
Estates that are not required to file a federal estate tax return and that do not involve probate or estate litigation may often close in five or six months.
19. HOW ARE PROBATE FEES DETERMINED IN A FLORIDA PROBATE ADMINISTRATION?
The personal representative, the Florida probate attorney and other probate professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by Florida probate law to reasonable compensation.
The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fee; (4) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.
Likewise, the probate fee for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the probate fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida probate law.
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Florida probate law provides for several alternate, abbreviated procedures other than Formal Administration.
Summary Administration is generally available if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.
Under Summary Administration, the persons who receive the estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Administration by publication of notice in a local newspaper
Another alternative to Formal Administration is "Disposition Without Administration." This is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.
If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to record in Florida. This procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the real estate as if the last will and testament had been admitted to probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida.
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
If the decedent created a revocable trust, in certain circumstances, the trustee may be required to pay expenses of probate administration of the decedent's estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the probate court in Collier County, or where the decedent lived, giving information concerning the settlor and trustee.
This material represents general legal information about Florida probate law. Since the Florida probate law is continually changing, some provisions may be out of date. It is always best to consult a Florida probate attorney about your legal rights and responsibilities regarding your particular case.
Florida Counties and cities in which Naples Florida estate planning, elder law, guardianship, asset protection, and probate lawyers and attorneys offer Naples Florida estate planning, elder law, guardianship, asset protection, and probate services:
|Alachua||Gainesville, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy|
|Bay||Panama City, Panama City, Beach, Lynn Haven, Youngstown|
|Baker||Macclenny, Glen Saint Mary|
|Bradford||Starke, Brooker, Hampton|
|Brevard||Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar|
|Broward||Ft. Lauderdale, Davie, Sunrise, Weston, Coral Springs, Pompano Beach, Hollywood, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches|
|Charlotte||Punta Gorda, Charlotte, Port Charlotte, Palm Island|
|Citrus||Crystal River, Homosassa Springs, Inverness|
|Clay||Orange Park, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms|
|Collier||Naples, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee|
|Columbia||Lake City, Fort Whie|
|DeSoto||Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt|
|Dixie||Cross City, Horseshoe Beach, Old Town|
|Duval||Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach|
|Flagler||Palm Coast, Flagler Beach, Bunnell, Beverly Beach, Marineland|
|Gulf||Port St. Joe, Wewahitchka|
|Hamilton||Jasper, White Springs|
|Hernando||Brooksville, Weeki Wachi|
|Highlands||Avon Park, Sebring, Lake Placid, Leisure Lakes|
|Hillsborough||Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City|
|Indian River||Vero Beach, Indian River Shores, Fellsmere, Sebastian|
|Lake||Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla|
|Lee County||Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates|
|Levy||Bronson, Cedar Key, Chiefland, Williston, Yankeetown|
|Manatee||Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City|
|Marion||Ocala, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale|
|Martin||Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City|
|Miami-Dade||Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park|
|Monroe||Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier|
|Nassau||Fernandina Beach, Amelia Island, Hilliard, Yulee, Callahan|
|Okaloosa||Fort Walton Beach, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso|
|Orange||Orlando, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood|
|Osceola||Kissimmee, St. Cloud, Celebration|
|Palm Beach||Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge|
|Pasco||New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills|
|St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach|
|Polk||Lakeland, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven, Frostproof, Polk City, Highland Park, Indian Lake Estates|
|Santa Rosa||Gulf Breeze, Milton|
|Sarasota||Sarasota, Longboat Key, North Port, Venice|
|Seminole||Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs|
|St. Johns||St. Augustine, St. Augustine Beach, Ponte Vedra Beach, Nocatee, Crescent City, Melrose, Pomona Park, Welaka|
|St. Lucie||Fort Pierce, Port St. Lucie|
|Sumter||Wildwood, Bushnell, The Villages|
|Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange|
|Walton||DeFuniak Springs, Seaside|