Probate

Covid-19 Update. We can assist clients in probate matters throughout the State of Florida.

Since early 2020, as a result of updated procedures due to Covid 19, most Florida court proceedings are held remotely. This means your attorney can serve you in all jurisdictions in the State of Florida for your probate matter. Most cases can be handled efficiently in a virtual manner. Call us, and we can explain how these new procedures help you.

Florida Probate Attorneys

During the probate process, many legal issues may arise, from the expected to the unexpected. Most of these issues will be unfamiliar to non-attorneys, even with the simplest of probates.

Whether you are the personal representative or a beneficiary, an experienced probate attorney like those at the Martin Law Firm can help guide you through the often complex legal formalities and help make sure your interests are looked after. Even if there is a provision in a will appointing a particular attorney or law firm to represent a personal representative, any such clause is not binding. Rather, the personal representative may choose any attorney or firm.

It’s important to note that Florida courts are going virtual for probate matters, which means our firm can handle probate matters throughout the state, with no personal appearances necessary.

Most people must deal with the stress and complication of the probate process one to 3 times in their lives—we deal with it on almost a daily basis.

Our Florida Probate Guide

Probate Administration in Florida

Probate in Florida is the legal process of settling the estate of a deceased individual. Settling an individual’s estate means paying the debts owed by that person and distributing the remaining assets to that person’s heirs. 

Do I Need A Probate Attorney?

A probate attorney is essential to opening an estate in Florida. As a result of updated court procedures, we are also able to assist clients through the entire State of Florida with their probate needs. Our attorneys in Cape Coral, Fort Myers, and Naples can assist you with a probate action in Florida. We have clients throughout the world. All you need is a computer and a scanner—no travel or face-to-face meetings are needed.

Is Probate Necessary?

All property that is titled in the name of the decedent must pass through the probate process for the title to pass to the heirs of the decedent. 

Once a person dies, they are no longer able to make changes to the ownership of their assets. Instead, the Florida probate court supervises the administration of the estate. So if someone dies owning assets in their name, then probate may be necessary. There are a number of simple probate avoidance techniques available if you wish to minimize the expense of probate to your estate.

How long does probate take?

Generally, letters of administration can be issued by the court in a few weeks. Much of it depends on the nature and number of beneficiaries. Letters of administration give the personal representative the legal authority to administer the estate. 

From opening an estate to final discharge, the average estate takes under twelve months to administer. Some can be completed in shorter periods of time; others can take much longer.

Who can serve as a personal representative?

In Florida, a personal representative is responsible for administering the estate of the decedent. The court appoints a personal representative, and the court supervises the personal representative through this process. 

Serving as a personal representative is not an easy job. The appropriate person can truly act as a fiduciary and balance the needs of all interested parties to the estate. To be a personal representative in Florida, you must be:

• A resident of Florida
• a probate attorney licensed to practice law in Florida
• certain relatives of the decedent

By law, a personal representative must be represented by a probate attorney admitted to practice law in the State of Florida. A probate action in Florida is part of the public record, and so there is very limited privacy available to an estate. This may be ideal as the public nature of the process helps the integrity of the administration.

I’m named as a personal representative of an estate, now what?

Being named as an executor/executrix or personal representative of a person’s Last Will & Testament can be daunting. 

A personal representative is responsible for carrying out the provisions of the will, which includes:

• collecting the decedent’s assets
• paying any debts or taxes owed
• filing the decedent’s final tax returns
• distributing the remaining assets and inventory in accordance with the provisions of the will
• notifying companies that need to know about the death

If the decedent created a trust, the Trustee is responsible for implementing the trust and filing a Notice of Trust with the court. Even if an estate does not require a probate administration, all estates must be settled. There are still documents to be filed, debts and taxes to be paid and assets to be distributed.

How An Attorney Can Help

The probate attorneys at the Martin Law Firm have the experience to see you through every step of the process, so you can rest assured all of the provisions and processes are carried out to the letter of the law. We will assist the personal representative, family, and beneficiaries with sensitivity. We are involved in all aspects of estate and trust administration. We represent individual client’s fiduciaries in the probate process, which typically includes admitting the will, qualifying the fiduciaries, and preparing inventories and accountings, collecting assets, notifying creditors, and paying debts.

Our probate attorneys can help you with the following:

• Ancillary Probate Administration
• Asset Distribution
• Beneficiary Rights Under a Will or Trust
• Complex Post Mortem Estate Planning
• Estate Administration and Litigation
• Formal Probate Administration
• Summary Probate Administration
• Preparation of the Federal and State Estate Tax Returns
• Trust Administration and Litigation
• Representation of Personal Representatives
• Representation of Heirs and Creditors
• Preparation and Audits of Estate and Gift Tax Returns
• Representing Trustees in the Administration of Revocable and Irrevocable Trusts

How Much Does Probate Cost?

The expense of probate depends, in part, on legal fees. Since Florida requires an attorney to represent the Personal Representative, fees are set by statute. Generally, they are no more than 3% for the first million dollars in assets in the estate, with a percentage decreasing as the estate value increases. The fee for the personal representative is generally the same as that of the attorney.

Probate fees are currently, as of 2021, as follows:

• $1,500.00: Summary Administration (assets less than $75,000)
• $3,000.00: Formal Administration (assets greater than $75,000.00) or 3% of the inventory value of the estate assets up to $1,000,000.00. Percentage declines thereafter per Florida Statutes.
• Additional fees may be charged to assist in the determination of homestead, litigation, family disputes, and other matters. 

Please call us to discuss any questions you may have regarding legal fees. The Florida Statutes addressing attorneys fees and personal representative’s fees can be found at the Official Internet Site of the Florida Legislature.

Summary Administration

In general, summary administration is a shortened version of the regular probate process that non-qualifying estates must complete. 

The first major difference between formal administration and summary administration is that summary administration does not require a personal representative to be appointed. It also typically takes a shorter period of time, less effort, and less money than a regular administrative proceeding. 

Florida law recognizes two ways an estate can satisfy the requirements for summary administration. 

• First, the decedent must have died at least two years ago. 
• The second method of qualifying requires the entire value of the decedent’s estate minus the value of any property exemptions from creditor claims that does not exceed $75,000. 

However, it is important to note that if the will or other testamentary document clearly states that the testator wants their estate to go through formal probate administration, the estate is not eligible for summary administration.

Navigating a Summary Administration Proceeding in Florida

The first step your probate attorney assists you with within summary administration involves filing a petition with the probate court. This can be completed by a beneficiary of the will or the personal representative nominated in the will. 

The petition must contain specific information explaining why the estate is eligible for summary administration. The petition must include a list of the decedent’s assets and each asset’s estimated value, information about any outstanding debts, and the testator’s plan for disseminating these assets.

After the court reviews the petition, it will determine whether the estate qualifies for summary administration. If it qualifies, the court will issue an order providing for the distribution of the assets. This process does not require the appointment of a personal representative, which is the main component of a formal probate proceeding. Once the order is issued, the estate is distributed promptly.

Many people have concerns regarding creditor claims upon their death. Florida law provides for a two-year non-claim period, which means that if the decedent has been deceased for two years or longer, creditor claims are no longer valid. If the decedent has not been deceased for two years or more, any outstanding creditor claims must be handled before the court will issue a summary administration order. According to Florida law, the individual who files the petition must conduct a diligent search and reasonable inquiry to find any creditors and provide them with a copy of the petition. This can be a painstaking and complicated process, which is why it is a good idea to consult an experienced and knowledgeable estate planning lawyer. This can help you avoid any litigation based on ambiguities in the document or conflicts among beneficiaries.

Formal Administration

Understanding the probate process can be critical to drafting an effective estate plan. Formal administration is the most commonly used type of administration in Florida, next to summary administration, which is an expedited proceeding. 

Navigating a Formal Administration Proceeding in Florida

There are many specifications and requirements that apply to a formal proceeding, which involves three steps. 

Step One: Opening the Estate

After consulting and potentially retaining a probate attorney, the personal representative must file a petition with a Florida probate court.

These initial documents create a court record for the estate and provide a general accounting of several factors, including the assets in the decedent’s estate and their estimated value, along with any outstanding debts and other key issues. If the testator did not appoint a personal representative in their will, the court would need to appoint a representative. 

Florida law provides that an estate is not officially open until a personal representative has been identified. After the petition is filed, the judge will provide a set of letters of administration, which are legal documents that specify the identity of the personal representative and outline their duties.

Step Two: Administering the Estate

This step is the most complex step of a formal probate proceeding. 

• First, the personal representative must notify any creditors and provide them with a copy of the petition. 
• Also, the personal representative must collect any assets that they are tasked with supervising or disseminating under the will, including personal property and real estate. The personal representative can leave these items with the beneficiary who is intended to receive them in the will. 
• This process also involves performing a thorough inventory of the decedent’s estate, which they must file with the probate court within 60 days after receiving the letters of administration. The list must include the estimated fair market value of each item and substantial details about the items. 
• If there are any outstanding debts, the personal representative must also collect these, and they must oversee the continuation of any business affairs in which the decedent was involved if there is a reasonable way to preserve the value of the business. 
• There are additional steps that the personal representative must complete during this second phase, and it can become complicated. 

Retaining a skilled probate lawyer can assist people planning their estate and people tasked with the administration of an estate in reducing the chaos and ensuring a smooth proceeding.

Step Three: Closing the estate

This step can only take place after certain requirements have been satisfied, such as providing creditors with sufficient time to submit claims.

Trust Litigation

Unfortunately, disputes regarding the administration of a trust often arise, particularly when family conflicts exist or there are substantial assets involved. These disputes may be between trustees and beneficiaries or between various beneficiaries. Third parties may also create disputes.

These disputes, which often turn into litigation, may include:

• undue influence claims
• testamentary capacity or lack of capacity 
• trust disputes
• contested conservatorships or guardianships

Breaches of fiduciary duty are particularly troubling because most participants in trust administration are presumed to be honest and avoid self-dealing. When loved ones die, we all hope that their intentions are being carried out according to their wishes. Unfortunately, this is not always the case. 

In some instances, it may be shown that the deceased person’s known intentions are not being followed or that the deceased was somehow unduly influenced or coerced to make certain decisions that benefit the influencer.

This type of self-interest is known as a breach of fiduciary duty and can take many forms, but it always involves a person with some influence in the process who is manipulating the process for self-interest.

Trust Administration

Trustees must administer the trust with the highest standards of honesty and loyalty to the beneficiaries and have several various duties, including distributing assets to beneficiaries, paying taxes on behalf of the estate, and maintaining accurate accounting logs.

Trustees often run into trouble when they neglect to obtain experienced legal advice from experienced probate attorneys like those at the Martin Law Firm. A few common situations that are particularly difficult for trustees to navigate on their own include:

• Distributing assets requested by family members
• Handling the debts of the estate
• Transferring assets out of the trust
• Justifying any benefits personally obtained
• Dealing with payments for estate expenses and trustee fees

Trustees generally need the guidance of probate attorneys like those at the Martin Law Firm. Florida courts are moving to a virtual model for probate matters. Therefore, our firm can handle probate matters throughout the state, and clients do not have to appear personally.

Probate Litigation and Will Contests

Probate Litigation

The probate process involves a broad range of requirements, such as determining a personal representative, notifying creditors, collecting any outstanding debts owed to the decedent, and taking possession of the decedent’s assets and estate. 

During this process, interested parties can view the decedent’s will. In some instances, a viewing party may take issue with the will or how the personal representative is carrying out the decedent’s wishes. If this individual seeks to challenge the will, they may wish to retain a probate litigation attorney in Cape Coral or Fort Myers to initiate a proceeding to start a formal will contest. The lawsuit will involve the personal representative who is in charge of administering the estate and include allegations regarding the basis for the challenger’s contest.

Contested Probates

Thousands of probate cases open in Florida every month. Many of these cases involve the filing of a will. The will is typically filed with the probate court, which helps make sure that the testator’s express wishes are carried out during the probate process. Nonetheless, the validity of the will and/or whether it accurately reflects the testator’s wishes is sometimes brought into question, usually by beneficiaries (or people who feel they should be beneficiaries). 

When interested parties believe that the will is invalid or does not accurately reflect the deceased’s intentions, they may “contest” the will. Sometimes the will is contested on technical grounds, but other times, will contests are more complicated. Florida recognizes three primary types of grounds for contesting a will: Mistake, Undue Influence, and Lack of Mental Capacity.

Mistake in execution

According to Florida Statutes Section 732.502, there are specific requirements that a testator must follow when creating a will, such as having two individuals witness their signature and having these individuals also sign the will. If the challenger believes that these procedures were not conducted properly and can prove that they were not followed, the will may be rendered invalid.

Undue Influence

In this instance, the challenger claims that someone took advantage of the testator and influenced them to make particular decisions about the disposition of their assets. This can involve coercion, duress, and attempts to ingratiate oneself to the testator for the purpose of gaining favor and alienating others.

Lack of Mental Capacity

This is based on an assertion that the individual was unable to understand the value and extent of their possessions fully, that the testator’s loved ones and relatives ought to have been the rightful recipients of the property, and that the will does not dispose of the property in an expected way. The appropriate mental capacity required to make a will is not as high as general competency, and it can include dementia, Alzheimer’s, and other signs of aging or taking medications that impede one’s cognitive abilities.

Consult a Florida Probate Lawyer in Cape Coral or Fort Myers

Dealing with issues related to the probate process can be overwhelming after losing a loved one. Our Fort Myers and Cape Coral probate attorneys are led by a husband and wife team and will help alleviate that burden. Serving residents of Naples, Cape Coral, Fort Myers, Tampa, Miami, and other South Florida cities, we offer a free consultation, so call us now at (844) 642-6259 or contact us online.