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  • Frequently Asked Questions about Wills

    What is a will?

    A will is a legal document written to ensure that a person's possessions or responsibilities are taken care of according to their wishes after their death. A will may include the appointment of a personal representative, along with the delineations of which beneficiaries will get what.

    What happens to probate assets if there is no will?

    To summarize, if there is no will, Florida statute who gets what depending on whom the decedent left behind (ie. spouse, children, parents, siblings). Otherwise known as Intestate Succession, the rules function a default plan to specify how assets are shared if it is not explicitly stated in the will, or if there is no will at all.

    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.

    We cannot locate the will. Now what?

    Florida law presumes that if the original document cannot be produced, it was the decedent’s intent that the document be destroyed. It is possible to overcome this presumption depending upon specific facts. If the presumption cannot be overcome, the probate process would then follow the intestate succession process instead.

    Whether it's a probate, will, trust, life insurance, or any other form of estate planning, the experienced attorneys of Coye Law Firm are here to help!

    Call 407.648.4940 or contact Coye Law Firm today for a free, private strategy session about your case.

    The expert estate planning attorneys at Coye Law Firm are experienced with Florida, New York, Michigan, and District of Columbia law and are here to help.

    Still have questions? Click here to receive your free download of my Probate Special Report: 

     

      This Special Report is yours to keep. There is absolutely no cost and no obligation to you.


    From my Probate Special Report you will learn...

    -The 13 responsibilities that a personal representative has. 

    -The 5 different ways a personal representative's fees may be determined. 

    -The 3 different ways a Probate attorney's fees may be determined.

    -All individuals who may be involved in the probate process.

    -What you need to organize in order to move the probate process along quicker.

    -What to do with leftover medical bills and Medicaid.

       and more...

    Click here to receive your free download of my Probate Special Report now!

  • Frequently Asked Questions about Probate Personal Representative

    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.

    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

    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.

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

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

    1. The fee is as stated in the will
    2. The fee is determined in a contract between the personal representative and the decedent 
    3. Agreed upon between the personal representative and whoever is paying their fees (ie. Beneficiaries)
    4. The amount presumed to be reasonable as calculated under the law, if the amount is without objection
    5. Determined by the judge

    The personal representative’s attorney’s fees will be determined in one of three ways:

    1. As agreed upon by the attorney, the personal representative, and the persons paying the fee
    2. The amount presumed to be reasonable as calculated under the law, if the amount is without objection
    3. Determined by the judge

    Call 407.648.4940 or contact Coye Law Firm today for a free, private strategy session about your case.

    The expert estate planning attorneys at Coye Law Firm are experienced with Florida, New York, Michigan, and District of Columbia law and are here to help.

  • Frequently Asked Questions about the Probate Process

    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

    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.

    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.

    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.

    Is it ever too late to start the probate process?

    The short answer is no. Probate initiation is technically plausible for several decades. However, the longer you wait, the more complicated the process may become. For example, if an original heir passes away, then their inheritance would transfer to their own estate, and so on. You could also be subject to other statute of limitations (ie. Electing to take an undivided one-half interest in the homestead estate as a tenant in common must be done within 6 months). The sooner you begin the probate process, the smoother it will go, barring any disputes among beneficiaries.

    Who pays the bills of the decedent?

    Unless you were a co-signer on a loan or account to which debt was owed, the beneficiaries are not responsible. However, the estate is. All properly filed claims of debtors will be paid out before anything is transferred to the beneficiaries.

    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.

    Is the decedent’s life insurance policy included in Probate?

    It depends. If the life insurance policy has a named beneficiary, then typically the insurance company will release the funds directly to that person after the paperwork is filed. If there is no named beneficiary, then the life insurance policy will be processed as part of the estate. If processed as part of the Estate, the proceeds are subject to creditors claims. If the policy is paid to a named beneficiary, then those funds are exempt from creditors claims. The only exception to paying the proceeds to a named beneficiary is if the funds are necessary to fund a spouse’s elective share.

    Call 407.648.4940 or contact Coye Law Firm today for a free, private strategy session about your case.

    The expert estate planning attorneys at Coye Law Firm are experienced with Florida, New York, Michigan, and District of Columbia law and are here to help.

    Still have questions? Click here to receive your free download of my Probate Special Report: 

     

      This Special Report is yours to keep. There is absolutely no cost and no obligation to you.


    From my Probate Special Report you will learn...

    -The 13 responsibilities that a personal representative has. 

    -The 5 different ways a personal representative's fees may be determined. 

    -The 3 different ways a Probate attorney's fees may be determined.

    -All individuals who may be involved in the probate process.

    -What you need to organize in order to move the probate process along quicker.

    -What to do with leftover medical bills and Medicaid.

       and more...

    Click here to receive your free download of my Probate Special Report now!

  • Frequently Asked Questions about Probate

    What is Probate?

    Probate is the process by which the court identifies and gathers a decedent’s assets. Through the probate process, all taxes, claims, and expenses are paid, and assets are distributed among beneficiaries. The probate code can be found in Title XLII of the Florida Statutes. There are two types of probate administration, Formal Administration and Summary Administration.

    What is Formal Probate Administration?

    Formal Probate Administration is the required proceeding when Summary Administration is either not appropriate or not selected by the interested parties. A personal representative is required for Formal Probate Administration.

    What is Summary Probate Administration?

    Summary Probate Administration is a shortened proceeding to administer an estate. Summary administration is allowed if more than two years have elapsed since the date of decedents death, or if the assets involved total LESS than $75,000. A personal representative is not required for Summary Probate Administration. However, the beneficiaries of a summary administration remain responsible for all creditor claims that are discovered in a timely fashion.

    What are considered assets in Probate Administration?

    Probate assets are those items of value that were owned solely by the decedent. These assets must not have a provision for automatic succession, other wise they will not be considered probate assets. For example, bank accounts, real estate (but not the homestead property), and a life insurance payable to the decedent’s estate are all probate assets, but trust funds, joint bank accounts, life insurance policies payable to an individual, or real estate owned jointly would not be.

    Still have questions? Click here to receive your free download of my Probate Special Report: 

     

      This Special Report is yours to keep. There is absolutely no cost and no obligation to you.


    From my Probate Special Report you will learn...

    -The 13 responsibilities that a personal representative has. 

    -The 5 different ways a personal representative's fees may be determined. 

    -The 3 different ways a Probate attorney's fees may be determined.

    -All individuals who may be involved in the probate process.

    -What you need to organize in order to move the probate process along quicker.

    -What to do with leftover medical bills and Medicaid.

       and more...

    Click here to receive your free download of my Probate Special Report now!

     

  • Is the decedent’s life insurance policy included in Probate?

    It depends. If the life insurance policy has a named beneficiary, then typically the insurance company will release the funds directly to that person after the paperwork is filed. If there is no named beneficiary, then the life insurance policy will be processed as part of the estate. If processed as part of the Estate, the proceeds are subject to creditors claims. If the policy is paid to a named beneficiary, then those funds are exempt from creditors claims. The only exception to paying the proceeds to a named beneficiary is if the funds are necessary to fund a spouse’s elective share. 
     

  • Is it ever too late to start the probate process?

    The short answer is no. Probate initiation is technically plausible for several decades. However, the longer you wait, the more complicated the process may become. For example, if an original heir passes away, then their inheritance would transfer to their own estate, and so on. You could also be subject to other statute of limitations (ie. Electing to take an undivided one-half interest in the homestead estate as a tenant in common must be done within 6 months). The sooner you begin the probate process, the smoother it will go, barring any disputes among beneficiaries. 
     

  • Who pays the bills of the decedent?

    Unless you were a co-signer on a loan or account to which debt was owed, the beneficiaries are not responsible. However, the estate is. All properly filed claims of debtors will be paid out before anything is transferred to the beneficiaries. 
     

  • 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.