Lins Law Group, P.A.

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Tampa’s Resource For Complex Legal Challenges

Make Sure Your Rights Are Protected In Probate And Trust Matters

Probate and trust matters are two of the most powerful — and potentially life-changing — procedures under Florida law. In probate, you’re dealing with administering and distributing a decedent’s assets. With a trust, you can dictate how you want your life assets transferred. In both situations, you’re greatly impacting the future — and financial well-being — of your loved ones, beneficiaries and heirs.

At Lins Law Group, P.A., we recognize that probate and trust matters are complex and emotional processes for most individuals and families — and we are committed to helping ensure that both process moves forward smoothly for you and your loved ones. Regardless of the complexity of your estate or trust, our attorneys are committed to guiding administrators, trustees, families and beneficiaries through the probate and trust administration process with intelligence and confidence.

You Deserve 30-Plus Years Of Probate And Trust Experience On Your Side

Since 1984, Lins Law Group, P.A., has been helping individuals and families in Tampa (and across the United States) with complex probate and trust matters. Our lawyers understand that these matters can significantly impact your future and the well-being of your family — that’s why we dedicate a substantial portion of our law practice to guiding individuals through these significant, potentially life-altering situations.

Whether you and your family live in Florida, or a loved one passed away in Florida, we can help you with a variety of sensitive matters, including:

  • Probate administration:
    • Determining the status of the homestead
    • Preparing and filing probate court forms
    • Representing the estate in probate court proceedings
    • Transferring assets
    • Reviewing estate and gift tax returns
    • Reviewing estate income tax and trust income tax returns
  • Trust administration:
    • Special needs trusts
    • Revocable and irrevocable living trusts
    • Charitable trusts
    • Grantor trusts
    • Minor trusts
    • Testamentary trusts

Probate Litigation — When There’s A Dispute, There’s Litigation

In addition to handling probate and trust administration matters, we help clients with probate and trust litigation disputes, including will contests and objections to the administration of an estate or trust. Often wills or trusts are contested as a result of late changes that exclude or limit the inheritance of a family member. Will and trust contests are typically related to claims of lack of capacity of the benefactor and undue influence involved in the drafting of a will.

Many times beneficiaries feel left out of the administration process because the person handling the estate or trust administration is not fulfilling their obligations. Having legal representation can help protect a beneficiary’s rights.

Seven reasons not to add persons to title in order to avoid probate.

Sometimes clients attempt certain “planning” action on their own. Among the worst of these steps is the practice of adding their children or another person onto the title to their house or other assets. The thinking is that by doing so they will avoid probate. While this practice might in fact avoid probate, it can create far more problems than it solves.

There are at least seven good reasons not to add another person (other than a spouse) onto the title of your house or other assets. These include:

  1. In the event the person faces a liability or debt claim from a third party, your property can be at risk.
  2. In the event the person gets in trouble with the IRS, your property can be at risk.
  3. In the event the person goes through a divorce, your property can be at risk.
  4. In the event you want to sell the property, you must get the other person’s permission.
  5. Placing another person’s name on the title could be considered a gift, thereby triggering a gift tax consequence if the property exceeds $12,000.
  6. Placing another person’s name on the title could jeopardize your getting government help with nursing home care.
  7. If you have a mortgage on your real estate and add another person to the title, you may actually be causing a default under the “due-on-sale” provisions of your mortgage.

There are probably more reasons, but for now, these should be reason to follow this advice. When you consider making this type of transfer — don’t. Instead, seek sound legal counsel on other ways to accomplish your objectives such as setting up a living trust.

Probate And Trust Administration FAQ

1. What is probate?

Probate is the court process through which a person’s Estate is administered. In layman’s terms, probate is one of the means through which a person’s final affairs are resolved. In probate, various matters are addressed. These include matters such as gathering of Estate assets, payment of creditors, payment of any unpaid taxes, determination of beneficiaries, appointment of a guardian, and distribution of a person’s assets. In Florida, there are two types of probate: Summary Administration and Formal Administration. A Summary Administration applies to estates of less than $75,000 (not including exempt assets such as a homestead). A Formal Administration applies to Estates valued at more than $75,000. The determination of whether an Estate requires a Summary Administration or a Formal Administration should be made with the advice of an experienced Florida probate attorney.

2. How do I file a Summary Administration?

Summary Administration is a form of probate intended to deal with smaller estates and in which there are either no creditors or all creditors are known and there is a plan to pay the creditors through the Summary Administration. Unlike a Formal Administration, in a Summary Administration essentially all required documents are submitted to the court at one time and the court enters its Order of Summary Administration. This Order directs the distribution of Estate assets and the payment of creditors. No Personal Representative is appointed in a Summary Administration. This simple form of probate is desirable when appropriate because it can be accomplished at a lower cost and in a shorter period of time. Probate attorneys and estate attorneys in the Tampa Bay area (Hillsborough, Pinellas, Pasco and Hernando counties, including Tampa, Brandon, St. Petersburg, Clearwater, Dunedin, Palm Harbor, Wesley Chapel, Zephyrhills, Dade City, New Port Richey and Spring Hill) typically charge a flat or fixed fee ranging from $2,000 to $3,000 for a Summary Administration. In the Tampa Bay area (including Hillsborough, Pinellas, Pasco and Hernando counties), Summary Administration can usually be completed within 30-45 days from the date of filing. This contrasts significantly from a Formal Administration which can be very expensive and take a minimum of 8-12 months (and frequently longer).

3. How do I open a Formal Administration probate of an Estate?

A Formal Administration probate is initiated by filing a Petition for Administration with the Circuit Court of the county where the deceased person resided at the time of death. The Petition requests that the court admit the Will to probate (if there is a Will), that the court appoint the Personal Representative and open the Estate administration. The Personal Representative does not have any authority to act for the Estate until the Court enters its Order Appointing Personal Representative and the Personal Representative has sign an Oath of Personal Representative. Sometimes the court will provide in the Order that the Personal Representative’s appointment does not go into effect until a bond is posted. The purpose of the bond is to secure performance by the Personal Representative. Whether to require a bond and the amount of a bond is determined in the discretion of the probate court. In most instances, a request is made to waive the bond.

4. What Authority Does the Personal Representative Have to Act for the Estate?

Once appointed, the Personal Representative will have authority both under the applicable Chapter 733, Florida Statutes and under the terms of the Will to act for the Estate. These cover a broad range of powers including dealing with Estate assets, resolving creditor claims, distributing Estate assets, etc. In order to exercise his or her authority, the Personal Representative is issued “Letters of Administration” which are signed by the probate judge empowering the Personal Representative to act for the Estate.

5. How Does the Estate Deal with Creditors?

One of the first steps taken by the Personal Representative is to publish a Notice to Creditors in a local publication. In addition, a copy of the Notice to Creditors is mailed to any known creditors. Once the Notice to Creditors is published, creditors have the lesser of three months from the date of publication or 30 days from actual receipt of the Notice within which to file a claim against the Estate. If claims against the Estate are not timely filed, they are forever barred. This gives the Personal Representative and the Estate finality in dealing with creditors. If claims are filed which are disputed, the Personal Representative may object to them, thereby triggering a situation where they may be resolved by the court.

6. How Do Beneficiaries Receive Their Distributions?

Distributions to beneficiaries from the Estate can be made when provision for payment of all creditors has been made. This usually means that the Personal Representative does not distribute the Estate until the creditor period has expired. Distributions can be made “in kind” meaning that the distribution is made from the Estate assets themselves. For example, if there are two beneficiaries and the Estate includes two equally valued motor vehicles, the Personal Representative can distribute one vehicle to one beneficiary and one to the other. Alternatively, the Personal Representative may liquidate or sell the Estate assets and distribute the proceeds according to the plan of distribution. When a beneficiary has received a distribution, the beneficiary gives a Receipt to the Personal Representative.

7. Does the Personal Representative Receive Compensation for Services?

The Will often addresses whether a Personal Representative is to be compensated for his or her services. If the Will does not address the issue or if it specifically authorizes payment, then the Personal Representative can receive compensation. The amount of compensation will be determined by the Personal Representative but if there is any disagreement, the court makes the final decision. A Personal Representative may receive compensation not to exceed 3% of the Estate value.

8. Who Pays the Costs of Administration Such as Attorney’s Fees, Accounting Fees, Etc.)?

Before final distribution to beneficiaries, the Estate pays the costs of reasonable attorney’s fees, accounting fees and any other reasonably necessary fees. This means that these expenses come out of the Estate before distribution, so the beneficiaries share in the costs.

9. What is Trust Administration and How Does it Differ From Probate?

Unless otherwise required by the Living Trust agreement, a Living Trust may be administered by the Trustee without court oversight. However, some of the Trustee’s duties are similar to those of a Personal Representative. Upon the death of a Trust Grantor, the Trustee must gather all Trust assets, determine and pay all legitimate creditors, pay any taxes, and oversee the management and distribution of the Trust assets. Unlike probate, which is governed by the Chapter 733, Florida Statutes and by the Florida Rules of Probate Procedure, Trust administration is usually governed by the terms of the Trust agreement itself supplemented by Chapter 736, florida Statutes. As with probate, the law governing Trust administration is sufficiently complex that a Trustee should seek the advice of an experienced Florida Trust attorney before administering the Trust. The Florida Trust Code has some very specific duties which must be complied with in order to fulfill the trustee’s duties.

10. How do I find an experienced probate, estates or trust administration attorney?

The name of an attorney who is experienced in all aspects of probate, estates and trust administration can be found much like finding other professionals, including by asking friends and family, doing research on the internet and elsewhere and through lawyer search sites such as http://www.findlaw.com/, http://www.martindale.com and http://www.lawyers.com. Most importantly, in hiring an attorney, meet with the attorney in person and make sure that you are comfortable with the experience and approach and demeanor of the attorney who will be representing you. The relationship you have with your attorney during this important time will be helpful to you and should be based on a mutually good rapport between client and attorney.

Request a Free Book by Mr. Lins “Florida Estate Planning & Probate Unveiled” Contact us to request this helpful free book.

Contact an Experienced Tampa Bay, Florida Lawyer

Let us help you protect your legal rights — and your future well-being — in probate and trust administration, and litigation matters. Contact us online or call 813-280-0082 to schedule your free initial consultation.