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  • Is probate necessary if there is a surviving spouse?

    Probate is necessary if the decedent owns ANY property solely in their name. If everything is part of a joint account or has a joint owner with rights of survivorship, then probate wouldn't be necessary. 
     

  • How are personal representative/attorney fees determined throughout the Probate process?

    Personal representative fees will be determined in one of five ways:

    • The fee is as stated in the will
    • The fee is determined in a contract between the personal representative and the decedent
    • Agreed upon between the personal representative and whoever is paying their fees (ie. Beneficiaries)
    • The amount presumed to be reasonable as calculated under the law, if the amount is without objection
    • Determined by the judge
    The personal representative’s attorney’s fees will be determined in one of three ways:
    • As agreed upon by the attorney, the personal representative, and the persons paying the fee
    • The amount presumed to be reasonable as calculated under the law, if the amount is without objection
    • Determined by the judge

     

  • Can a spouse be cut out of a will or trust?

    Legally, no. Florida law provides that the surviving spouse may receive an elective share of 30% of the decedent’s elective estate, unless there is a valid pre/post marital agreement. However, the election is not automatic, and is subject to strict election deadlines.

     
     

  • What is the Personal Representative responsible for accomplishing?

    The personal representative has a variety of responsibilities:

    • Identify, gather, evaluate, and safeguard all probate assets
    • Publish a “notice to creditors” giving notice of the administration of the estate, along with the requirements to file a claim
    • Serve a “notice of administration” to specific people to give notice of any requirements to file objections regarding the estate
    • Notify all reasonably ascertainable creditors
    • Object to improper claims and defend any resulting lawsuits
    • Pay valid claims
    • File tax returns
    • Pay taxes
    • Employ necessary professionals to assist in the process
    • Pay administrative expenses
    • Distribute assets to surviving family
    • Distribute assets to other beneficiaries
    • Close probate administration

  • Do I need an attorney to go through the Probate process?

    Florida law requires a personal representative to retain an attorney unless the individual is the only interested party. However, the probate process is complex, and most non-attorneys would have a hard time working through it without the assistance of an attorney.
     

  • What is a Personal Representative?

    The personal representative is the person, bank, or trust company appointed by the court to be in charge of the administration of the estate. Other terms used to describe the personal representative: executor, administrator.
     

  • Who can be a Personal Representative?

    The personal representative can be an individual (usually stated in the will), a bank, or a trust company. To qualify as a personal representative, an individual must be either a Florida resident, or a spouse, sibling, parent, child, or other close relative of the decedent. Florida law provides for which persons have priority in serving as the personal representative in the event someone did not have a will. 
     

  • Where do I file my Probate Paperwork?

    You should file all probate paperwork with the Clerk of the Circuit Court in the county where the decedent lived prior to death. There will usually be a filing fee, which must be paid upfront, to initiate the probate process. Appropriate paperwork, including the will must also be filed with the Clerk of the Circuit Court.
     

  • Who will supervise the Probate process and make final decisions?

    A Circuit Court Judge will preside over the probate process. He or She will assess the validity of a will, appoint a personal representative, if necessary, and insure that assets are divided in accordance with Florida Law.
     

     

  • Who will be involved in the Probate Process?

    The following list includes those who may be involved in the probate process, depending on the financial situation of the decedent:

    • Clerk of the Circuit Court
    • Circuit Court Judge
    • Personal Representative/Executor
    • Personal Representative’s Attorney
    • Claimants (those who the decedent was in debt to – creditors, health care providers)
    • IRS (if the decedent owed any federal income taxes or estate taxes)
    • Florida Department of Revenue
    • Surviving family
    • Other beneficiaries