Probate Archives

Petition for Administration: Should you Consent or Object?

A loved one has passed away and after a few weeks you receive a package from a probate attorney's office. Inside the package are several official looking documents along with a cover letter asking that you sign and return a Consent to the enclosed Petition for Administration. Should you sign the Consent or not? Should you file an Objection?

A Surviving Spouse's Decision on Homestead

Tom and Cathy (an imaginary couple) are married and have no children together. Tom has two adult children from a prior marriage; Cathy has no children. The couple reside in a Florida home which Tom owned before they got married. As a result, title to the home is only in Tom's name. Sadly, Tom dies unexpectedly of a heart-attack. At the time of his death, Tom had no Last Will and Testament. Cathy goes to see an estate attorney to find out about her rights regarding the home she and Tom had lived in for over ten years--she leaves in shock!

Summary Administration in Florida

In Florida, there are two types of probate administration: formal and summary. Both accomplish essentially the same objective of allowing the distribution of a decedent's assets. However, there are some significant differences between these two types of probate. This article is intended to discuss the summary probate administration.

Florida's Spousal Elective Share and Life Insurance

Under Florida law, a spouse has the right to receive 30% of certain of his or her deceased spouse's assets. This is true notwithstanding whether the deceased spouse has excluded his or her spouse under his or her Last Will and Testament or Trust. So if the deceased spouse died having a Will which left nothing to his or her spouse, then the surviving spouse could still receive 30% of the applicable assets. The surviving spouse would have to make an election under Section 732.201, Fla. Stat. in order to be entitled to receive this share.

In Florida probate, when is homestead property not given homestead protection?

Article X, Section 4 of the Constitution of Florida provides protection against the claims of creditors for a person's homestead, i.e. their principal residence. In essence, if a homeowner owes money to a creditor, that creditor cannot attach or force sale of the residence in order to receive payment. The same concept applies if the owner dies owning a homestead. In other words, if a homeowner owes a creditor (such as a credit card, medical bills, etc.), when the person dies, the creditor usually cannot collect against the homestead. The homestead is exempt form the claims of creditors.

Why Probate is Needed to Pursue a Florida Wrongful Death Claim

In Florida, when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, certain of the deceased's survivors and the deceased's estate may be entitled to recover damages. Those damages, and who are entitled to them, are set forth in detail in Section 768.21, Fla. Stat.

Does my Will control who receives my life insurance benefits at my death?

Clients sometimes ask this question--often because they are confused about the relationship between their Will and their life insurance policy. After all, doesn't the Will designate a person's beneficiaries? This blog will clarify the relationship between the Will and life insurance.

Medicaid Claim Against A Deceased Person's Estate

A common question which we encounter in our Florida estate and probate practice is whether a person's estate will owe any money to Medicaid upon the person's death. Usually the reason for their question is that the person has received Medicaid benefits prior to their death. Many times, those benefits were as a result of Medicaid paying for the deceased person's long term care in their final years.

What does it mean to get a "step-up" in basis on assets when a person dies?

In our estate and probate practice, beneficiaries often ask whether they will have to pay taxes on assets that they inherit. The answer to this often depends on what type of asset is involved and whether there is a gain or a loss on the asset. When a person owns property and they devise it to someone at death, in determining whether there's a gain or a loss for tax purposes, a determination must be made of the "basis" for the property. From the basis, it can be determined whether the value went up--a gain--or went down--a loss.

Who has Priority to be Appointed as Personal Representative of an Estate in Florida?

When a person dies and a formal probate estate must be opened in Florida, the probate court will appoint a person to be in charge of the estate administration. In Florida, this person is known as a "Personal Representative." In other states, it is known as an "Executor" or "Administrator." In Florida, no one is authorized to act as Personal Representative until a probate court issues an Order appointing the Personal Representative. Simply being designated in the Will is not enough--an Order appointing the Personal Representative is required.

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