The Palm Coast and Flagler Beach probate lawyer and attorney at The Palm Coast Probate Lawyer have been involved with helping personal representatives and beneficiaries in the probate of estates in Florida for more than 30 years. If you need assistance with a probate matter in the Palm Coast, Flagler Beach, Beverly Beach, or Bunnell, Florida areas, please contact us to discuss how we may help you with your probate court matters.

Probate law in Florida is governed by chapters 731-735 of the Florida Statutes, known as The Florida Probate Code.  

10. WHO CAN BE A PERSONAL REPRESENTATIVE OF A PROBATE ESTATE IN FLORIDA?

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

1. WHAT IS PROBATE IN FLORIDA?

Florida probate is a court-supervised process for identifying and gathering the decedent's assets, paying estate taxes and income taxes, probate estate claims and expenses and distributing probate assets to beneficiaries of the estate. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law establishes two types of probate administration:

1. Formal probate Administration, with which most of this information deals and

2. Summary Probate Administration

Florida probate law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."  (Back to Top of Page)

2. WHAT ARE FLORIDA PROBATE ASSETS? 

Generally, Florida 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, 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;

    • a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset, but a life insurance policy, retirement account or annuity payable to the decedent's estate is a Florida probate asset;

    • 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 Floridaa exempt homestead) but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;

    • real property or personal property owned by husband and wife as tenants by the entirety is not a Floridda 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.   (Back to Top of Page)

3. WHY IS PROBATE NECESSARYIN FLORIDA? 

Probate is necessary in Florida 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 probate 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.   (Back to Top of Page)

4. WHAT IS A LAST WILL AND TESTAMENT? 

A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida probate law. A last will and testament usually designates a personal representative to administer the Florida probate estate and names beneficiaries to receive probate assets. A last will and testament can also do other things, including establishing a testamentary trust and designating a trustee.

To the extent a last will and testament properly devises Florida probate assets and designates a personal representative, the last will and testament controls over the automatic provisions set forth under  Florida probate law. In the absence of a valid last will and testament, or if the last will fails in either respect,  Florida probate law designates the beneficiaries of the probate estate and designates the way to select the personal representative for the probate estate.   (Back to Top of Page)

5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT? 

Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of  Florida unless no intestate heirs can be found. If there is no last will and testament, the assets of the decedent will be distributed to the intestate heirs as follows: 

    • Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate estate.

    • Surviving spouse and lineal descendants.

        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 Florida probate estate plus one-half of the rest of the probate estate, and the lineal descendants 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 Florida probate assets and the lineal descendants share the remaining half of the probate estate.

    • No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the 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 probate 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 for exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida exempt homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the exempt Florida homestead, with the lineal descendants of the deceased spouse receiving the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida exempt homestead outright.  (Back to Top of Page)

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 Florida probate process:

    • Clerk of the Circuit Court (See Question 7).

    • Circuit Court (acting through a Circuit Court Judge, See Question 8).

    • Personal Representative (Executor) (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 (See Question 17).

    • Trustee of Revocable Trust (See Question 21).  (Back to Top of Page)

7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA? 

Probate papers are filed with the Clerk of the Circuit Court, usually for the county where the decedent lived. For those seeking to file probate documents with the probate court in Flagler County, the probate clerk's office is located at:  Kim C. Hammond Justice Center, Clerk of Circuit Court, 1769 East Moody Blvd., Building 1, Bunnell, Florida 32210.  The telephone number for the Clerk is:  (386) 313-4497. 

A filing fee must be paid to the probate clerk to commence the Florida probate administration in Flagler County, Florida. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the clerk for that Flagler County probate administration.  (Back to Top of Page)  

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION? 

A Circuit Court Judge presides over Florida probate proceedings. The Florida probate judge appoints the personal representative of the probate estate 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." (Back to Top of Page)  

9. WHAT IS A PERSONAL REPRESENTATIVE OF A PROBATE ESTATE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO? 

The personal representative is the person, bank or trust company appointed by the Florida 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 probate court to administer the probate estate pursuant to  Florida probate law. The personal representative is obligated to:

    • Identify, gather, value and safeguard probate assets.

    • Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other 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 with the Florida probate court any objections relating to the probate estate.

    • Conduct a diligent search to locate "known or reasonably ascertainable" creditors of the probate estate, and notify them of the time by which their claims must be filed with the Florida probate court.

    • Object to improper claims and defend suits brought on such claims.

    • Pay valid claims of the probate estate.

    • File tax returns, including, if necessary the Federal Estate Tax Return (Form 706).

    • Pay income taxes and estate taxes.

    • Employ necessary probate professionals to assist.
    
    • Pay administrative expenses of the probate estate.

    • Distribute statutory amounts or probate assets to the surviving spouse or family.

    • Distribute probate assets to beneficiaries of the estate.

    • Close probate administration.  (Back to Top of Page)

10. WHO CAN BE A PERSONAL REPRESENTATIVE?

    • The personal representative could be an individual, bank, or trust company, subject to certain restrictions.

    • An individual who is either a resident of  Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as 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 personal representative.   (Back to Top of Page)
 

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

    • 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 the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs. (Back to Top of Page)

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A PALM COAST FLAGLER BEACH PROBATE LAWYER OR 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 probate estate administration.

The probate attorney for the personal representative advises the personal representative on rights and duties under the Florida probate law, and represents the personal representative in Florida probate estate proceedings. The Florida probate attorney for the personal representative is not the Florida probate attorney for the beneficiaries of the probate estate.

A provision in a last will and testament mandating that a particular Florida probate attorney or firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative.   (Back to Top of Page)  

13. HOW ARE PROBATE ESTATE CREDITORS HANDLED? 

Prior to commencement of Florida probate proceedings, a creditor can file a caveat with the Florida probate court. Upon publication of notice to creditors a creditor or other claimant may file with the Florida probate court a document called a "statement of claim" against the probate estate with the Clerk of the Circuit Court where the probate estate is being administered. This claim is generally required to be filed with the Florida probate court within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file with the Florida probate court an objection to the statement of claim, after which the claimant must file in the Florida probate court a separate independent lawsuit to pursue the claim against the estate.

The personal representative is required to use diligent efforts to give actual notice of the probate court proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of.   (Back to Top of Page)

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 probate estate and size of the probate 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 probate estate, reporting income for the probate estate.

    • Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.

    • Form 706 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 probate 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.   (Back to Top of Page)  

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. If 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."  The Palm Coast and Flagler Beach Florida probate attorney for the personal representative will help ensure that all tax compliance matters are handled in a timely and legally proper manner.

Regarding  Florida's intangible tax, the Florida Department of Revenue may review the probate inventory to determine whether the Florida probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For Florida 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 Florida probate administration.   (Back to Top of Page)
  

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE ASSETS? 

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a pre-marital or post-marital agreement (prenuptial agreement) to the contrary, a surviving spouse may have Florida exempt homestead rights, Florida spousal elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have Florida exempt 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 Palm Coast, Beverly Beach, or Flagler Beach, Florida probate attorney.

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE? 

Under  Florida probate law, as with most other states, a decedent may entirely disinherit other potential beneficiaries of the estate.

18. HOW LONG DOES PROBATE TAKE IN FLORIDA? 

For Florida 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 Florida 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 Florida probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the probate court because often the IRS' review and acceptance of the estate tax return are not completed within that period.

Probate estates that are not required to file a federal estate tax return and that do not involve litigation may often close in five or six months.   (Back to Top of Page)

19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE? 

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 attorney's 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.    (Back to Top of Page)

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION? 

Florida probate law provides for several alternate, abbreviated procedures other than Formal Probate Administration.

Summary Probate 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 Probate Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Probate Administration by publication of notice in a local newspaper

Another alternative to Formal Probate Administration is "Disposition Without Administration." This is available if probate 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 will 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 will had been admitted to probate court. 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.   (Back to Top of Page)

21. WHAT IF THERE IS A REVOCABLE LIVING TRUST? 

If the decedent created a  revocable living trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court where the decedent lived, giving information concerning the settlor and trustee.

This material represents general legal information. Since the law is continually changing, some provisions may be out of date. It is always best to consult anexperienced Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular case.  (Back to Top of Page) 

If you need a Florida probate lawyer or attorney to assist you with a Florida probate administration, in Palm Coast, Flagler Beach, Beverly Beach, or Bunnell, please contact The Palm Coast Probate Lawyer, PLLC. 

This material represents general legal information. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced Palm Coast, Flagler Beach, Beverly Beach or Bunnell Florida probate lawyer or attorney  about your legal rights and responsibilities regarding your particular Florida probate case.