Florida Probate Attorney and Florida Inheritance Lawyer Florida Probate Attorney Blog

New Florida Intestate Succession Law and other Trusts and Estates legislation.

E Lobbyist reports regarding Florida Trusts and Estates legislation that has sailed through the legislature and is expected to be signed into law by the Governor. 

The site summarizes the legislative changes saying that it provides fiduciary lawyer-client privilege; revises provisions relating to intestate share of surviving spouse; provides right to reform terms of will to correct mistakes or achieve tax objectives; provides for award of fees & costs in reformation & modification proceedings either against party's share in estate or in form of personal judgment against party individually; clarifies that revocation of will is subject to challenge on grounds of fraud, duress, mistake, or undue influence, etc.  

MyFloridaHouse.gov shows their more complete summary of the proposed legislation which appears will shortly become Florida Trusts and Estates law. It has a significant change to Florida Intestate Succession law in that for decedents dying on or after October 1, 2011 that do not have a will the law will be changed. The current law is that when a decedent leaves children all of whom are also the children of the surviving spouse then the spouse receives the first $60,000 and then one half of the remainder. The new law will be for intestate estates when that situation comes up the spouse will receive everything. When one or more children are not also children of the surviving spouse then the law will remain the same for Florida Intestate estates that the spouse will receive one half and the children will receive one half. 

How Real Estate is titled is important for avoiding Florida Probate

In some states if real estate is owned by two people it may pass to the survivor even if they are not husband and wife. However in Florida it depends on whether or not they are husband and wife. If a property is owned by two people who are husband and wife it will pass to the survivor unless it says in the deed it was as tenants in common if they are not husband and wife and own the property individually it would need to say with right of survivorship in order to pass to the survivor and avoid probate.

Also if the property were in trust that may minimize the probate although it would not neccesarily avoid it. In order to shorten the creditor period to the longer of 30 days after date of service or 3 months after publication a probate would need to be opened. Although if there were no property actually in the estate or it were less than $75,000 a Summary Probate summary probate could be used. 

What assets are included in Florida Probate and which are not?

The only assets included in a Florida probate are those owned in the sole name of the decedent without a named beneficiary. Assets that have a transfer on death designation, are owned with right of surivorship, pass by contract such as 401k's or IRAs with named beneficiaries all pass to those individuals. 

Florida Intestate Succession - spouses share

If a decedent dies without a will Florida Probate Law provides for an intestate succession as follows:

If there is a spouse and no lineal descedants the spouse shall receive the entire estate.

If there are lineal descendants of the decedent the decedent all of who are lineal decedants of the surviving spouse than the spouse shall receive the first $60,000 of the estate and one half of the remainder of the fair market value as of the date of death.

If there are surving lineal descedants of decedant some of who are not also lineal descendants of the spouse the surviving spouse will receive one half of the estate.

Florida of Intestate Estate to Spouse is provided for in Florida Statute 732.102

What is Florida Probate?

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

If the decedent left a will it is known as a testate estate. Unless the testator was less than 18 years of age, lacked mental capacity to make the will at the time of execution, was unduly influenced regarding how they disposed of their property the will controls how the decedents property will be distributed subject to the legally enforceable debts, taxes, and expenses of the estate and the legal protections a surviving spouse has such as elective share, family allowance and homestead rights of a surviving spouse and children or a minor child.

Broward County Probate Seminar - Florida Probate Law A view from the Bench

The Broward County Probate and Trust Section of the Broward Bar Association and organized by the Florida Probate Attorney who writes this Probate Attorney Blog, David Luber as chair. are pleased to be hosting a seminar titled Probate Law a view from the bench. The bar section and Probate Attorney David Luber thank Broward Probate Judge Green, Probate Judge Grossman and Probate Judge Speiser for speaking to the section on the evening of May 4 at the Bar Association. For more info the Broward Bar website click here. 

Michael Jackson Probate Update - Odd claims disputed

The Attorneys for the Michael Jackson Probate case rejected some strange claims. TMZ.com reported that the estate disputes the validity of several claims some of which are just odd and the claimants lack standing to bring. 

Among them include "A pissed off private citizen" who wants the estate to reimburse the city of LA to be reimbursed $3.3 million of dollars for his funeral memorial. 

A woman seeking $2 million for her home schooling services. 

A woman who claimed to be his wife and wanted custody of the children who they told to get lost. 

An additional woman is demanding $50 million because she claims that Michael Jackson wiretapped her phone and had organized criminals watching her. She was also told to get lost. 

The full article can be viewed by clicking here. 

Although this is a California case in Florida the procedure for creditor claims is that following the appointment as personal representative the PR or their Florida Probate Attorney on their behalf would publish notice to creditors in a publication authorized to publish legal notices. It would run once a week for two consecutive weeks. Any creditors which are not known or reasonably ascertainable then would be required to file creditor claims against the estate within 3 month period of publication. If they were it is the greater of 3 months or 30 days after service of notice to them but in no case no longer than 2 years after the date of death. If a claim is filed within the time the estate then has the greater of 30 days after service or 4 months after initial publication of notice to dispute it in which case they can deny any liability as was done with the above claims or agree that something is owed but indicate it should be only x amount. If the claim is denied then an independent action must be taken by the person filing the claim. That would be to bring a lawsuit in probate court. A probate litigation attorney could seek to assist the estate in defending the claim which is felt unjustified. If the lawsuit against the estate is not filed then the claim is considered abandoned. 

The deadlines and probate process rules are important to be followed or the case can be lost. In Florida there are no creditor claims after two years under any situation unless a claim has been timely filed. The Florida statutes regarding Creditor Claims can be found by clicking here.

Florida Probate

WHAT IS FLORIDA PROBATE? Florida Probate is a court-supervised process for determining what are the decedent's assets, paying taxes, claims and expenses and distributing the assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. If the decedent left a will it is known as a testate estate. Unless the testator was less than 18 years of age, lacked mental capacity to make the will at the time of execution, was unduly influenced regarding how they disposed of their property the will controls how the decedents property will be distributed subject to the legally enforceable debts, taxes, and expenses of the estate and the legal protections a surviving spouse has such as elective share, family allowance and homestead rights of a surviving spouse and children or a minor child.

Florida Intestate Probate - Adopted persons share

Florida law provides persons who are adopted have the same rights to receive property from their adoptive family as if they were a lineal descedant but in most situation they will no longer be entitled to receive property through intestate succession from their natural parents. Florida Statute 732.108 provides the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parents family and is generally not a lineal descendant of his or her natural parents nor is he or she one of the kindred of any member of the natural parents family or any prior adoptive parents family except adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parents family.

Florida Intestate Probate - Share of other Heirs

In Florida intestate estates the share of heirs other than a spouse is everything if there was no spouse. If there were children and a spouse the children will receive one half of the estate if any of the children were not also the children of the surviving spouse. The children will receive one half of the intestate share after the first sixty thousand goes to the spouse if all the lineal descendants (children) are also the children of the surviving spouse. The share of a child passes per stirpes so if a child pre deceases leaving children of their own the grandchildren can get their parents share by representation.

If no lineal descedants of the decedent and no spouse then equally to decedent parents or all to the survivor.

If the decedent parents are also predeceased than to decedent's siblings and their descendants per stirpes if the siblings pre decease.

The Estate is divided one half each between the decedents paternal and maternal family as follows to Gramppa and Grandma equally or their survivor.

If no grandparents than to uncles and aunts and their descedants per stripes if the uncles or aunts pre decease leaving lineal descendants.

If no family remains on one side than the full share passes in the above mentioned order to the side of the family who did survive.

If no family on either side than the whole estate goes to the family of the last deceased spouse of the decedent as if the deceased spouse had survived the decdent and died intestate.

Florida Intestate Probate - Spouses Share

If a decedent dies without a will Florida Probate Law provides for an intestate succession as follows:

If there is a spouse and no lineal descedants the spouse shall receive the entire estate.

If there are lineal descendants of the decedent the decedent all of who are lineal decedants of the surviving spouse than the spouse shall receive the first $60,000 of the estate and one half of the remainder of the fair market value as of the date of death.

If there are surving lineal descedants of decedant some of who are not also lineal descendants of the spouse the surviving spouse will receive one half of the estate.

Florida of Intestate Estate to Spouse is provided for in Florida Statute 732.102