Probate Archives

How do I transfer Florida real estate after the owner has died?

Not uncommonly, we have prospective clients come into the office after a loved one has died. Their request is often simple...for example:"I need a deed to put Mom's house into my name. Her Will says I'm supposed to get it. Can you prepare that deed for me?" Unfortunately, it's not that simple. In most instances, there will need to be a court order to transfer the property. And in Florida, that means opening a probate.

What is an "adversary proceeding" in Florida probate?

In Florida probate, certain types of disputes are considered adversary proceedings. This designation has several implications, including that fact that the Florida Rules of Civil Procedure apply. In effect, an adversary proceeding proceeds as if it were a civil lawsuit within the probate. In particular, the parties can conduct discovery, including Requests for Production of Documents, Interrogatories, and taking depositions.

Why does probate of a Florida estate take so long?

In Florida, probate is a court proceeding whereby a deceased person's final affairs are resolved and assets are distributed. There are two types of probate in Florida: summary administration and formal administration. In a summary probate, estate assets must not exceed $75,000 (not including the homestead) and there must be no creditors--or all creditors must be dealt with. Essentially all other probate cases fall under "formal" administration. 

Voluntarily Filing Probate to Resolve Creditor Claims

With effective estate planning, probate in Florida can almost always be avoided. This can be accomplished by establishing a Living Trust (also referred to as a "Revocable Trust") and transferring assets into the Trust before death. Avoiding probate may also be accomplished by use of beneficiary or "pay-on-death" designations with certain financial accounts, annuities, retirement accounts and life insurance policies.

In Florida, does a surviving spouse have a right to inherit from their deceased spouse?

As an estate planning lawyer, I sometimes have a client ask whether they are entitled to inherit from their spouse. In other words, can their spouse cut them out of an inheritance? For the most part, the answer is that one spouse cannot be "written out" altogether from their spouse's estate. Unless there's a Pre-Nuptial Agreement in place, the surviving spouse has certain rights that arise as a matter of Florida law.

Contesting a Will or Trust as a Result of Undue Influence in Florida

In Florida, a Last Will & Testament or a Trust can be contested for a number of reasons, including fraud, duress and undue influence. In the case of undue influence, if a substantial beneficiary under a Will or Trust occupies a confidential relationship with the person who executed the instrument and is active in procuring the contested Will or Trust, a presumption of undue influence arises. So what does it mean that a person is active in procuring?

Does Having a Will Avoid Probate in Florida?

One of the most common misconceptions I run into as an estate planning lawyer is that many people think that if they have a Last Will and Testament in Florida, probate will not be necessary. The reality is that a Will sets forth the deceased person's wishes--such as designating the beneficiaries and the Personal Representative to oversee the estate. In essence, the Will acts as the "roadmap" for the probate court to follow. But the important thing to understand is that the Will is not self-implementing--it is the power given by the probate court that implements the wishes set forth in the Will.

What are Letters of Administration and How Do I Get Them?

Quite commonly, after their loved one has died clients come to us as estate attorneys and they tell us that a bank or other financial institution is asking for "Letters of Administration." When that happens, the client will ask us how do they get such Letters. 

What is Ancillary Probate Administration in Florida?

In Florida, it is not uncommon for persons to own real property or other assets in the state while not being residents of the state. Each Winter, residents of northern states travel to their Florida properties to spend the cold months in Florida's warm weather. Many of these persons own homes in both their home state and in Florida. So what happens if these residents of other states die and still own Florida real property? Often the result is that two probate administration proceedings will need to be opened. The probate of the resident state is commonly referred to as the "domiciliary probate" and the probate in Florida would then be the "ancillary probate."

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