Florida Probate Law
Our Florida probate lawyer and attorney help personal representatives and beneficiaries in the probate of estates in
Do I need an attorney to handle an estate?
Probate in Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, and other communities in Volusia County,
Florida Probate Law Frequently Asked Questions:
1. WHAT IS FLORIDA PROBATE?
2. WHAT ARE FLORIDA PROBATE ASSETS?
3. WHY IS PROBATE IN FLORIDA NECESSARY?
4. WHAT IS A LAST WILL AND TESTAMENT?
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA?
8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE IN FLORIDA?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE IN A FLORIDA PROBATE PROCEEDING?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
13. HOW ARE PROBATE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED IN A FLORIDA PROBATE?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED WITH FLORIDA PROBATE?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN A FLORIDA PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE IN FLORIDA?
19. HOW ARE PROBATE FEES DETERMINED IN A FLORIDA PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
1. Formal probate Administration, with which most of this information deals and
2. Summary Probate Administration - which is for estates valued at less than $75,000, other than assets that are exempt from creditors' claims (Florida homesteads typically are exempt from creditor claims), and all creditors have been provided for or paid. The Coleman Law Firm typically represents the heirs or beneficiaries in such cases for a fixed flat fee. If you have an estate to administer that is a summary probate, and need an experienced Daytona Beach Florida probate lawyer to represent you, please contact The Coleman Law Firm to obtain a flat or fixed fee quote for your legal representation at 904-448-1969, or toll free at 866-510-9099, or email us at Info@TheDaytonaProbateLawyer.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 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 policy payable to the decedent's estate is a Florida probate asset;
• 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) but Florida real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;
• Florida real 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. (Back to Top of Page)
3. WHY IS PROBATE IN FLORIDA NECESSARY?
When should an estate be probated or administered?
Probate is necessary in
If you need an experienced Daytona Beach Florida probate attorney please call us toll free at 1-866-510-9099.
(Back to Top of Page)
A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by
Do I need the original will?
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
What if there is no will?
Contrary to the belief of some, the 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 probate assets.
• 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 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 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 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 Florida exempt homestead property, exempt personal property, and a statutory family 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 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 exempt Florida homestead outright.
If you need the assistance of an experienced Daytona Beach Florida probate lawyer to help you with an intestate estate probate please call us toll free at 1-866-510-9099.
(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 probate process:
• Clerk of the Circuit Court for Volusia County, or the county where the probate proceeding is taking place (See Question 7).
• Circuit Court (acting through a Circuit Court Judge, See Question 8).
• Personal Representative (See Questions 9 through 11).
• The Florida Probate Attorney for the Personal Representative (See Question 12).
• Claimants against the probate estate (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).
(Back to Top of Page)
Florida probate papers are filed with the Clerk of the Circuit Court, usually in Volusia County, 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 the Florida probate papers filed with the clerk for that probate administration. (Back to Top of Page)
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 probate administration of the estate by entering written directions called "orders."
(Back to Top of Page)
The personal representative is the person, bank or trust company appointed by the
Can there be more than one personal representative (executor)?
The personal representative is directed by the
• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims with the Florida probate court and other papers relating to the Florida 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 Florida probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims against the probate estate must be filed with the Florida probate court.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File income tax returns and federal estate tax returns, including, if necessary the Federal Estate Tax Return (Form 706).
• Pay taxes.
• Employ necessary probate professionals to assist.
• Pay administrative expenses of the probate estate.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries who inherit the probate assets.
• Close the Florida probate administration. (Back to Top of Page)
10. WHO CAN BE A PERSONAL REPRESENTATIVE IN FLORIDA?
• The personal representative 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
(Back to Top of Page)
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE IN A FLORIDA PROBATE PROCEEDING?
• 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. (Back to Top of Page)
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 lawyer or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative of the estate.
If you need an experienced probate lawyer in Daytona Beach, or Volusia County, Florida, please contact us at Info@TheDaytonaProbateLawyer.com or toll free at 866-510-9099.
(Back to Top of Page)
13. HOW ARE PROBATE ESTATE CREDITORS HANDLED?
Prior to commencement of
The personal representative is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. 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 Florida probate estate until the claim has been satisfied or otherwise disposed of.
(Back to Top of Page)
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 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 tax returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including income 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 estate taxes and income taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to
(Back to Top of Page)
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED WITH FLORIDA PROBATE?
The personal representative is required to send a copy of the Florida 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
Regarding
For Florida estates required to file a
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN A FLORIDA PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under
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 probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate judge, after notice to interested persons.
The federal estate tax return is initially due nine months after death and may be extended by the IRS 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 federal estate tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the federal 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 probate litigation may often close in five or six months.
(Back to Top of Page)
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 fees; (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 fees 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. (Back to Top of Page)
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
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 a "notice of trust" with the
If you need an experienced probate lawyer in Daytona Beach, Florida, please call us toll free at 1-866-510-9099.
This material represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced
Florida Counties and cities in which Daytona Beach Florida probate lawyers and attorneys of the Coleman Law Firm offer Florida probate and guardianship legal services:
|
Alachua County probate lawyers |
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 County probate attorneys |
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 |
|
Calhoun |
Blountstown |
|
Charlotte |
Punta Gorda, Charlotte, Port Charlotte, Palm Island |
|
Citrus |
Crystal River, Homosassa Springs, Inverness |
|
Clay County probate attorneys |
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 White |
|
DeSoto |
Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt |
|
Dixie |
Cross City, Horseshoe Beach, Old Town |
|
Duval County probate lawyers |
Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach |
|
Escambia |
Pensacola |
|
Flagler County probate attorneys |
Palm Coast, Flagler Beach, Bunnell, Beverly Beach, Marineland |
|
Franklin |
Apalachicola |
|
Gadsden |
Quincy, Chattahoochee |
|
Gilchrest |
Trenton |
|
Glades |
Moorehaven |
|
Gulf |
Port St. Joe, Wewahitchka |
|
Hamilton |
Jasper, White Springs |
|
Hardee |
Wauchula |
|
Hendry |
Clewiston, LaBelle |
|
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 |
|
Holmes |
Bonifay |
|
Indian River |
Vero Beach, Indian River Shores, Fellsmere, Sebastian |
|
Jackson |
Marianna |
|
Jefferson |
Monticello |
|
Lafayette |
Mayo |
|
Lake County probate attorneys |
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 |
|
Leon |
Tallahassee |
|
Levy |
Bronson, Cedar Key, Chiefland, Williston, Yankeetown |
|
Liberty |
Bristol |
|
Madison |
Madison |
|
Manatee |
Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City |
|
Marion County probate lawyers |
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 |
|
Okeechobee |
Okeechobee |
|
Orange County probate attorneys |
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 |
|
Pinellas
|
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 |
|
Putnam |
Palatka, Interlachen |
|
Santa Rosa |
Gulf Breeze, Milton |
|
Sarasota |
Sarasota, Longboat Key, North Port, Venice |
|
Seminole County probate lawyers |
Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs |
|
St. Johns County probate attorneys |
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 |
|
Suwannee |
Live Oak |
|
Taylor |
Perry, Steinhatchee |
|
Union |
Lake Butler |
|
Volusia County probate lawyers |
Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange |
|
Wakulla |
|
|
Walton |
DeFuniak Springs, Seaside |
|
Washington |
Chipley |
Qualified Income Trust
If you or a family member need a Qualified Income Trust, also known as a "Miller Trust," so that you can qualify for Medicaid benefits to pay for long term care in a skilled nursing home, you can prepare your QIT online, have it reviewed by an experienced Florida elder law attorney, and have your completed trust within 48 hours, at a reasonable cost. Click here to begin your QIT.
