Orlando Lawyers, Estate Planning and Probate Attorneys
Probate in
Probate lawyers and attorneys in Orlando, Orange County, Florida have been involved with helping personal representatives and beneficiaries in the probate of estates in the Orlando,
Probate in
1. Formal probate Administration, with which most of this information deals and
2. Summary Probate Administration, which is involved when the Florida probate estate is less than $75,000 in value (less exempt property) or 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."
If you need the assistance of a Orlando probate attorney for your Orlando, Florida probate matter, whether formal administration or summary administration, please contact us toll free at 888-492-2468 or email at Info@TheOrlandoProbateLawyer.com.
Generally,
• 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 Flroida 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 policy 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 exempt Florida homestead) but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;
• 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.
3. WHY IS PROBATE NECESSARY IN FLORIDA?
Probate is necessary in
A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by
To the extent a last will and testament properly devises the Florida probate assets and designates a personal representative, the last will and testament controls over the automatic provisions set forth under
Contrary to the belief of some, the Orlando decedent’s Florida probate assets are not turned over to the State of
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida 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 Florida 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 Florida probate estate.
• 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 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 statute 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 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 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 exempt 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 Orange County, Florida, in Orlando, Florida, or such county as the decedent was residing at the time of his or her death.
• Circuit Court for Orange County, Florida (acting through a Circuit Court Judge, See Question 8).
• Personal Representative of the Orlando, 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 Florida Probate Estate (See Question 17).
• Trustee of Revocable Trust (See Question 21).
Probate papers are filed with the Clerk of the Circuit Court, for Orange County, Florida, or in the county where the decedent lived. A probate filing fee must be paid to the Orange County probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the clerk for that probate administration.
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 Florida probate Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called "orders."
The personal representative is the person, bank or trust company appointed by the
The personal representative is directed by the
• Identify, gather, value and safeguard Florida probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file with the Florida probate court 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 with the probate court any objections relating to the probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, 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 in the Orlando, Florida probate court.
• Pay valid claims.
• File tax returns, including, if necessary the Federal Estate Tax Return (Form 706).
• Pay taxes.
• Employ necessary probate professionals to assist the personal representative in the probate administration.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries of the probate estate.
• Close probate administration.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
• The personal representative of the Orlando, Florida probate estate could be an individual, bank, or trust company, subject to certain restrictions.
• An individual who is either a resident of
• A trust company incorporated under the laws of
11. WHO HAS PREFERENCE TO BE 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 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 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
The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the
A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as probate attorney for the personal representative is not binding on the personal representative.
If you need the assistance of a Florida probate lawyer to assist you with your Orlando, Florida probate matter, please contact us toll free at 888-492-2468, or email us at Info@TheOrlandoProbateLawyer.com.
Prior to commencement of
The personal representative is required to use diligent efforts to give actual notice of the probate 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.
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
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
Regarding
For Florida probate estates required to file a
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE?
Under
For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the 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 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.
Orlando probate estates that are not required to file a federal estate tax return and that do not involve estate litigation may often close in five or six months.
The personal representative, the
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 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?
Summary Probate Administration is generally available if the value of the estate subject to probate in
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.
If you need the assistance of a Florida probate attorney with your summary probate administration in Orlando, Orange County, Florida, please contact us toll free at 888-492-2468 or email us at Info@TheOrlandoProbateLawyer.com.
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
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 in Orange County, Florida, or the county in which the decedent resided at death, a "notice of trust" with the
This material represents general legal information about Florida probate law. Since Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an experienced
Warning: fopen(plugins/hitcounter/hitcount_aba9e26b_2d93_4765_80e6_49307d7a3f3f.txt): failed to open stream: Permission denied in /var/chroot/home/content/r/a/n/randycole50/html/plugins/hitcounter/ss_qiSPjoW_R4nx9rjzkTvsnsjY1QM_1lMu59HhzAE.php on line 405
Warning: fopen(plugins/hitcounter/hitcount_aba9e26b_2d93_4765_80e6_49307d7a3f3f.txt): failed to open stream: Permission denied in /var/chroot/home/content/r/a/n/randycole50/html/plugins/hitcounter/ss_qiSPjoW_R4nx9rjzkTvsnsjY1QM_1lMu59HhzAE.php on line 405
Warning: fopen(plugins/hitcounter/hitcount_aba9e26b_2d93_4765_80e6_49307d7a3f3f.txt): failed to open stream: Permission denied in /var/chroot/home/content/r/a/n/randycole50/html/plugins/hitcounter/ss_qiSPjoW_R4nx9rjzkTvsnsjY1QM_1lMu59HhzAE.php on line 405
Warning: fopen(plugins/hitcounter/hitcount_aba9e26b_2d93_4765_80e6_49307d7a3f3f.txt): failed to open stream: Permission denied in /var/chroot/home/content/r/a/n/randycole50/html/plugins/hitcounter/ss_qiSPjoW_R4nx9rjzkTvsnsjY1QM_1lMu59HhzAE.php on line 405
|
|
|
|
|
|
|
|
Macclenny, Glen Saint Mary |
|
|
Starke, Brooker, Hampton |
|
|
Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar |
|
|
|
|
|
Blountstown |
|
|
Punta Gorda, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cross City,
|
|
Duval |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Moorehaven |
|
|
Port St. Joe, Wewahitchka |
|
|
Jasper, White Springs |
|
|
Wauchula |
|
|
Clewiston, LaBelle |
|
|
Brooksville, Weeki Wachi |
|
|
|
|
|
Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City |
|
|
Bonifay |
|
|
|
|
|
Marianna |
|
|
|
|
|
Mayo |
|
|
|
|
|
Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates |
|
|
|
|
|
Bronson, Cedar Key, Chiefland, Williston, Yankeetown |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City |
|
|
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 |
|
|
|
|
|
|
|
|
|
|
|
Okeechobee |
|
|
|
|
|
|
|
|
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 |
|
|
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 |
|
|
|
|
|
Palatka, Interlachen |
|
|
Gulf Breeze, |
|
|
|
|
|
|
|
|
|
|
St. Lucie |
|
|
|
Wildwood, Bushnell, The Villages |
|
|
Live Oak |
|
|
Perry, Steinhatchee |
|
|
|
|
|
Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange |
|
|
|
|
|
DeFuniak Springs, |
|
|
Chipley |