Probate May Be Simple
...and sometimes may be avoided
...and sometimes may be avoided
You May Be Able To Have
An Inheritance Free From...
An Inheritance Free From...
To learn how Florida's probate
laws may work for you, call today!
(407) 681-2700 or you may visit
our Frequently Asked Questions
page for more information.
laws may work for you, call today!
(407) 681-2700 or you may visit
our Frequently Asked Questions
page for more information.
Probate Services by the Law Office of Patrick John McGinley, P.A.
 | Creditor Liens | |
| Excessive Delays | |
| Unnecessary Paperwork |
Although every situation is different,
may be avoided.
The goal of your attorneys and
paralegals at the Law Office of Patrick
John McGinley, P.A. is to make every
probate as simple as possible under
the circumstances. We know that the
loss of a loved one can create serious
issues regarding bank accounts, real
estate, creditor bills, and funeral
expenses. We understand that when
it comes to resolving such situations,
sooner is often better.
Our concern for speed, however, is not
at odds with our commitment to
diligence and careful attention to
detail. We are lawyers who pride
ourselves in taking provident, accurate,
and appropriate measures to wrap up
your probate estate properly.
Please call our Winter Park office today
at (407) 681-2700, or use the "Contact
Us" page.
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Do you have questions about Florida Law? See the "Frequently Asked
Questions" below, or better yet, please CALL US TODAY: (407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important decision that should not be based solely upon
advertising. Before you decide, ask us to send you free written information about our
qualifications and experience. Call 407-681-2700. Main Office: Winter Park (Orange
County), Florida.
Florida probate lawyer. Probate in Orange County Court. Seminole County Probate. Osceola, Lake,
Sumter County, Florida probate. Volusia County Probate. Probate attorneys serving all of Florida.
FREQUENTLY ASKED QUESTIONS ABOUT FLORIDA PROBATE:
1. WHAT IS PROBATE?
Probate is a court-supervised process for identifying and gathering the
decedent's assets, paying taxes, claims and expenses and distributing assets
to beneficiaries. The Florida Probate Code is found in Chapters 731 through
735 of the Florida Statutes.
Florida law establishes two types of probate administration:
1. Formal Administration, and
2. Summary Administration
Florida law also establishes a non-administration proceeding called
"Disposition of Personal Property Without Administration."
2. WHAT ARE PROBATE ASSETS?
Generally, probate assets are those assets in the decedent's sole name at
death or otherwise owned solely by the decedent and which contain no
provision for automatic succession of ownership at death. For example:
• a bank account in the sole name of a decedent is a probate asset, but a
bank account held in-trust-for (ITF) another, or held jointly with rights of
survivorship (JTWROS) with another, is not a probate asset;
• a life insurance policy, annuity or individual retirement account that is payable
to a specific beneficiary is not a probate asset, but a policy payable to the
decedent's estate is a probate asset;
• real estate titled in the sole name of the decedent or as a tenant in common
with another person, is a probate asset (unless it is homestead) but real
estate held as joint tenants with rights of survivorship or as tenants by the
entirety is not a probate asset;
• property owned by husband and wife as tenants by the entirety is not a
probate asset on the death of the first spouse to die, but goes automatically
to the surviving spouse.
This list is not exclusive but is intended to be illustrative.
3. WHY IS PROBATE NECESSARY?
Probate is necessary to wind up the affairs the decedent leaves behind. It
ensures that all of the decedent’s creditors are properly paid. Probate also
serves to transfer assets from the decedent's individual name to the proper
beneficiary. Florida has had probate laws in force since becoming a state in
1845. Florida law provides for all aspects of the probate process, but allows
the decedent to make certain decisions by leaving a valid will.
4. WHAT IS A WILL?
A will is a writing, signed by the decedent and witnesses, which meets formal
requirements set forth by Florida law. A will usually designates a personal
representative to administer the estate and names beneficiaries to receive
probate assets. A will can also do other things, including establishing a trust
and designating a trustee.
To the extent a will properly devises probate assets and designates a
personal representative, the will controls over the automatic provisions set
forth under Florida law. In the absence of a valid will, or if the will fails in either
respect, Florida law designates the beneficiaries and designates the way to
select the personal representative.
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
Contrary to the belief of some, the decedent’s assets are not turned over to
the State of Florida unless no intestate heirs can be found. If there is no will,
the assets of the decedent will be distributed to the intestate heirs as follows:
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse
and no lineal descendants, the surviving spouse takes all.
• Surviving spouse and lineal descendants.
1. If there is a surviving spouse and one or more lineal descendants (with the
lineal descendants all being the lineal descendants of the surviving spouse as
well as the decedent), the surviving spouse receives the first $60,000 of the
probate estate plus one-half of the rest of the probate estate, and the lineal
descendants share the remaining half.
2. If there is a surviving spouse and one or more lineal descendants (one or
more of which lineal descendants are not also lineal descendants of the
surviving spouse), the surviving spouse receives one-half of the probate
assets and the lineal descendants share the remaining half.
• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse,
but there are lineal descendants, the lineal descendants share the estate,
which is initially broken into shares at the children's level, with a deceased
child's share going to the descendants of that deceased child.
• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving
spouse or lineal descendants, the probate property goes to the decedent's
surviving parents, and if none, then to the decedent's brothers and sisters and
descendants of any deceased brothers or sisters. The law provides for further
disposition if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions
for homestead property, exempt personal property, and a statutory allowance
to the surviving spouse and any lineal descendants or ascendants the
decedent supported. Regarding homestead, if titled in the decedent's name
alone, the surviving spouse receives a life estate in the homestead, with the
lineal descendants of the deceased spouse receiving the homestead property
upon the death of the surviving spouse. If there are no lineal descendants, the
surviving spouse receives full ownership of the homestead outright.
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often
involved in the probate process:
• Clerk of the Circuit Court (See Question 7).
• Circuit Court (acting through a Circuit Court Judge, See Question 8).
• Personal Representative (See Questions 9 through 11).
• Attorney for the Personal Representative (See Question 12).
• Claimants (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Beneficiaries (See Question 17).
• Trustee of Revocable Trust (See Question 21).
7. WHERE ARE PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, usually for the
county where the decedent lived. A filing fee must be paid to the clerk to
commence the probate administration. The clerk assigns a file number and
maintains a docket sheet which lists all papers filed with the clerk for that
probate administration.
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
A Circuit Court Judge presides over probate proceedings. The judge appoints
the personal representative and issues "letters of administration," also
referred to simply as "letters." This document shows to the world the authority
of the personal representative to act. The Judge also holds hearings when
necessary and resolves all questions raised during the administration of the
estate by entering written directions called "orders."
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE
PERSONAL REPRESENTATIVE DO?
The personal representative is the person, bank or trust company appointed
by the court to be in charge of the administration of the estate. The generic
term "personal representative" has replaced such terms as "executor,
executrix, administrator and administratrix."
The personal representative is directed by the court to administer the estate
pursuant to Florida law. The personal representative is obligated to:
• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims
and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information
about the estate administration and giving notice of requirements to file any
objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable"
creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
• The personal representative could be an individual, bank, or trust company,
subject to certain restrictions.
• An individual who is either a resident of Florida, or is a spouse, sibling,
parent, child, or certain other close relatives, can serve as personal
representative.
• A trust company incorporated under the laws of Florida, or a bank or savings
and loan authorized and qualified to exercise fiduciary powers in Florida, can
serve as personal representative.
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
• If the decedent left a valid will, the designated personal representative
nominated in the will has preference to serve.
• If the decedent did not leave a valid will, the surviving spouse has
preference, with second preference to the person selected by a majority in
interest of the heirs.
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
In almost all instances the personal representative must be represented by a
Florida attorney. Many legal issues arise, even in the simplest estate
administration.
The attorney for the personal representative advises the personal
representative on rights and duties under the law, and represents the
personal representative in estate proceedings. The attorney for the personal
representative is not the attorney for the beneficiaries.
A provision in a will mandating that a particular attorney or firm be employed
as attorney for the personal representative is not binding on the personal
representative.
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of probate proceedings, a creditor can file a caveat
with the court. Upon publication of notice to creditors a creditor or other
claimant may file a document called a "statement of claim" against the estate
with the Clerk of the Circuit Court where the estate is being administered. This
claim is generally required to be filed within the first three months of
publication of a prescribed notice in a countywide newspaper. This three-
month period is often referred to as the "non-claim period." The personal
representative or any other interested person may file an objection to the
statement of claim, after which the claimant must file a separate independent
lawsuit to pursue the claim.
The personal representative is required to use diligent efforts to give actual
notice of the probate proceeding to "known or reasonably ascertainable"
creditors, to afford them an opportunity to file claims. A valid claimant is not
viewed as an adversary of the personal representative but rather must be
treated fairly as a person interested in the estate until the claim has been
satisfied or otherwise disposed of.
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
For federal income tax purposes, death triggers two things. It ends the
decedent's last tax year for purposes of filing a federal income tax return, and
it establishes a new tax entity, the "estate."
The personal representative may be required to file the following returns,
depending on income of the decedent, income of the estate and size of the
estate:
• Final Form 1040 income tax return, reporting income for the decedent's final
tax year.
• One or more Form 1041 income tax returns for the estate, reporting income
for the estate.
• Form 709 gift tax return(s), reporting certain gifts made by the decedent prior
to death.
• Form 706 estate tax return, reporting the gross estate and deductions,
depending upon the value of the gross estate.
The personal representative may be required to file other returns. Additionally,
the personal representative has the responsibility to deal with issues arising
from tax years prior to the decedent's death (including tax returns that were
filed by the decedent or that should have been filed).
The personal representative has the responsibility to pay amounts due to the
IRS from the decedent and the estate and may be personally liable for those
taxes. If a federal estate tax return is required to be filed, an estate tax
closing letter is necessary to clear title to Florida real property, and in some
instances in order to close the probate administration with the court.
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
The personal representative is required to send a copy of the probate
inventory to the Florida Department of Revenue. A federal estate tax return is
not required to be filed with the IRS, then the personal representative is
required to record in the public records (and file in a formal estate
administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax
return is required to be filed with the IRS, then the personal representative is
required to file a Florida estate tax return, Form F-706, with the Florida
Department of Revenue."
Regarding Florida's intangible tax, the Florida Department of Revenue may
review the inventory to determine whether the estate, or the decedent while
alive, failed to file a required intangible tax return or to pay intangible tax.
For estates required to file a Florida estate tax return, a nontaxable certificate
or a tax receipt from the Florida Department of Revenue is required in order to
clear title to Florida real property and in order to close a formal probate
administration.
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE
ESTATE?
Florida public policy protects the surviving spouse and certain surviving children
from total disinheritance. Absent a marital agreement to the contrary, a
surviving spouse may have homestead rights, elective share rights, family
allowance rights, and exempt property rights. In addition, certain surviving
children of the decedent may also have homestead rights, pretermitted child
rights, family allowance rights, and exempt property rights. The existence and
enforcement of these rights is often best handled by an attorney.
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN
THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN
CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under Florida law, as with most other states, a decedent may entirely
disinherit other potential beneficiaries.
18. HOW LONG DOES PROBATE TAKE?
For estates not required to file a federal estate tax return, the final accounting
and papers to close the probate administration are due within 12 months of
issuance of letters of administration. This period can be extended, after notice
to interested persons.
The federal estate tax return is initially due nine months after death and may
be extended for another six months, for a total of 15 months. If a federal
estate tax return is required, the final accounting and papers to close the
probate administration are due within 12 months from the date the tax return
is due. This date is usually extended by the court because often the IRS'
review and acceptance of the estate tax return are not completed within that
period.
Estates that are not required to file a federal estate tax return and that do not
involve litigation may often close in five or six months.
19. HOW ARE FEES DETERMINED IN PROBATE?
The personal representative, the attorney and other professionals whose
services may be required in administering the estate (such as appraisers and
accountants) are entitled by law to reasonable compensation.
The fee for the personal representative is usually determined in one of five
ways: (1) as set forth in the will; (2) as set forth in a contract between the
personal representative and the decedent; (3) as agreed among the personal
representative and the persons who bear the impact of the fee; (4) as the
amount presumed to be reasonable as calculated under Florida law if the
amount is not objected to; or (5) as determined by the judge, applying Florida
law.
Likewise, the fee for the attorney for the personal representative is usually
determined (1) as agreed among the attorney, the personal representative
and the persons who bear the impact of the fee, (2) as the amount presumed
to be reasonable calculated under Florida law, if the amount is not objected to,
or (3) as determined by the judge, applying Florida law.
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Florida law provides for several alternate, abbreviated procedures other than
Formal Administration.
Summary Administration is generally available if the value of the estate subject
to probate in Florida (less property which is exempt from the claims of
creditors) is not more than $75,000 or the decedent has been dead for more
than two years.
Under Summary Administration, the persons who receive the estate assets
remain liable for claims against the decedent for two years after the date of
death. This period may be reduced in Summary Administration by publication of
notice in a local newspaper
Another alternative to Formal Administration is "Disposition Without
Administration." This is available if estate assets consist solely of exempt
property (as defined by law and the Florida Constitution) and non-exempt
personal property, the value of which does not exceed the combined total of
up to $6,000 in funeral expenses, plus the amount of all reasonable and
necessary medical and hospital expenses incurred in the last 60 days of the
last illness.
If the decedent was not a Florida resident at the time of death, an alternate
procedure may be used to admit the will to record in Florida. This procedure is
used to establish title to Florida real property. When admitted to record in any
Florida county where the real estate is located, the "foreign will" serves to
pass title to the real estate as if the will had been admitted to probate. This
procedure is available only if either two years have passed from the
decedent's death or the domiciliary personal representative has been
discharged and there has been no estate administration in Florida.
21. WHAT IF THERE IS A REVOCABLE TRUST?
If the decedent created a revocable trust, in certain circumstances, the trustee
may be required to pay expenses of administration of the decedent's estate
and enforceable claims of the decedent's creditors. In any event, the trustee is
required to file a "notice of trust" with the court where the decedent lived,
giving information concerning the settlor and trustee.
The material on this website represents general legal advice. Since the law is
continually changing, some provisions on this website may be out of date. It is
always best to consult an attorney about your legal rights and responsibilities
regarding your particular case.
Probate is a court-supervised process for identifying and gathering the
decedent's assets, paying taxes, claims and expenses and distributing assets
to beneficiaries. The Florida Probate Code is found in Chapters 731 through
735 of the Florida Statutes.
Florida law establishes two types of probate administration:
1. Formal Administration, and
2. Summary Administration
Florida law also establishes a non-administration proceeding called
"Disposition of Personal Property Without Administration."
2. WHAT ARE PROBATE ASSETS?
Generally, probate assets are those assets in the decedent's sole name at
death or otherwise owned solely by the decedent and which contain no
provision for automatic succession of ownership at death. For example:
• a bank account in the sole name of a decedent is a probate asset, but a
bank account held in-trust-for (ITF) another, or held jointly with rights of
survivorship (JTWROS) with another, is not a probate asset;
• a life insurance policy, annuity or individual retirement account that is payable
to a specific beneficiary is not a probate asset, but a policy payable to the
decedent's estate is a probate asset;
• real estate titled in the sole name of the decedent or as a tenant in common
with another person, is a probate asset (unless it is homestead) but real
estate held as joint tenants with rights of survivorship or as tenants by the
entirety is not a probate asset;
• property owned by husband and wife as tenants by the entirety is not a
probate asset on the death of the first spouse to die, but goes automatically
to the surviving spouse.
This list is not exclusive but is intended to be illustrative.
3. WHY IS PROBATE NECESSARY?
Probate is necessary to wind up the affairs the decedent leaves behind. It
ensures that all of the decedent’s creditors are properly paid. Probate also
serves to transfer assets from the decedent's individual name to the proper
beneficiary. Florida has had probate laws in force since becoming a state in
1845. Florida law provides for all aspects of the probate process, but allows
the decedent to make certain decisions by leaving a valid will.
4. WHAT IS A WILL?
A will is a writing, signed by the decedent and witnesses, which meets formal
requirements set forth by Florida law. A will usually designates a personal
representative to administer the estate and names beneficiaries to receive
probate assets. A will can also do other things, including establishing a trust
and designating a trustee.
To the extent a will properly devises probate assets and designates a
personal representative, the will controls over the automatic provisions set
forth under Florida law. In the absence of a valid will, or if the will fails in either
respect, Florida law designates the beneficiaries and designates the way to
select the personal representative.
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
Contrary to the belief of some, the decedent’s assets are not turned over to
the State of Florida unless no intestate heirs can be found. If there is no will,
the assets of the decedent will be distributed to the intestate heirs as follows:
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse
and no lineal descendants, the surviving spouse takes all.
• Surviving spouse and lineal descendants.
1. If there is a surviving spouse and one or more lineal descendants (with the
lineal descendants all being the lineal descendants of the surviving spouse as
well as the decedent), the surviving spouse receives the first $60,000 of the
probate estate plus one-half of the rest of the probate estate, and the lineal
descendants share the remaining half.
2. If there is a surviving spouse and one or more lineal descendants (one or
more of which lineal descendants are not also lineal descendants of the
surviving spouse), the surviving spouse receives one-half of the probate
assets and the lineal descendants share the remaining half.
• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse,
but there are lineal descendants, the lineal descendants share the estate,
which is initially broken into shares at the children's level, with a deceased
child's share going to the descendants of that deceased child.
• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving
spouse or lineal descendants, the probate property goes to the decedent's
surviving parents, and if none, then to the decedent's brothers and sisters and
descendants of any deceased brothers or sisters. The law provides for further
disposition if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions
for homestead property, exempt personal property, and a statutory allowance
to the surviving spouse and any lineal descendants or ascendants the
decedent supported. Regarding homestead, if titled in the decedent's name
alone, the surviving spouse receives a life estate in the homestead, with the
lineal descendants of the deceased spouse receiving the homestead property
upon the death of the surviving spouse. If there are no lineal descendants, the
surviving spouse receives full ownership of the homestead outright.
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often
involved in the probate process:
• Clerk of the Circuit Court (See Question 7).
• Circuit Court (acting through a Circuit Court Judge, See Question 8).
• Personal Representative (See Questions 9 through 11).
• Attorney for the Personal Representative (See Question 12).
• Claimants (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Beneficiaries (See Question 17).
• Trustee of Revocable Trust (See Question 21).
7. WHERE ARE PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, usually for the
county where the decedent lived. A filing fee must be paid to the clerk to
commence the probate administration. The clerk assigns a file number and
maintains a docket sheet which lists all papers filed with the clerk for that
probate administration.
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
A Circuit Court Judge presides over probate proceedings. The judge appoints
the personal representative and issues "letters of administration," also
referred to simply as "letters." This document shows to the world the authority
of the personal representative to act. The Judge also holds hearings when
necessary and resolves all questions raised during the administration of the
estate by entering written directions called "orders."
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE
PERSONAL REPRESENTATIVE DO?
The personal representative is the person, bank or trust company appointed
by the court to be in charge of the administration of the estate. The generic
term "personal representative" has replaced such terms as "executor,
executrix, administrator and administratrix."
The personal representative is directed by the court to administer the estate
pursuant to Florida law. The personal representative is obligated to:
• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims
and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information
about the estate administration and giving notice of requirements to file any
objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable"
creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
• The personal representative could be an individual, bank, or trust company,
subject to certain restrictions.
• An individual who is either a resident of Florida, or is a spouse, sibling,
parent, child, or certain other close relatives, can serve as personal
representative.
• A trust company incorporated under the laws of Florida, or a bank or savings
and loan authorized and qualified to exercise fiduciary powers in Florida, can
serve as personal representative.
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
• If the decedent left a valid will, the designated personal representative
nominated in the will has preference to serve.
• If the decedent did not leave a valid will, the surviving spouse has
preference, with second preference to the person selected by a majority in
interest of the heirs.
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
In almost all instances the personal representative must be represented by a
Florida attorney. Many legal issues arise, even in the simplest estate
administration.
The attorney for the personal representative advises the personal
representative on rights and duties under the law, and represents the
personal representative in estate proceedings. The attorney for the personal
representative is not the attorney for the beneficiaries.
A provision in a will mandating that a particular attorney or firm be employed
as attorney for the personal representative is not binding on the personal
representative.
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of probate proceedings, a creditor can file a caveat
with the court. Upon publication of notice to creditors a creditor or other
claimant may file a document called a "statement of claim" against the estate
with the Clerk of the Circuit Court where the estate is being administered. This
claim is generally required to be filed within the first three months of
publication of a prescribed notice in a countywide newspaper. This three-
month period is often referred to as the "non-claim period." The personal
representative or any other interested person may file an objection to the
statement of claim, after which the claimant must file a separate independent
lawsuit to pursue the claim.
The personal representative is required to use diligent efforts to give actual
notice of the probate proceeding to "known or reasonably ascertainable"
creditors, to afford them an opportunity to file claims. A valid claimant is not
viewed as an adversary of the personal representative but rather must be
treated fairly as a person interested in the estate until the claim has been
satisfied or otherwise disposed of.
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
For federal income tax purposes, death triggers two things. It ends the
decedent's last tax year for purposes of filing a federal income tax return, and
it establishes a new tax entity, the "estate."
The personal representative may be required to file the following returns,
depending on income of the decedent, income of the estate and size of the
estate:
• Final Form 1040 income tax return, reporting income for the decedent's final
tax year.
• One or more Form 1041 income tax returns for the estate, reporting income
for the estate.
• Form 709 gift tax return(s), reporting certain gifts made by the decedent prior
to death.
• Form 706 estate tax return, reporting the gross estate and deductions,
depending upon the value of the gross estate.
The personal representative may be required to file other returns. Additionally,
the personal representative has the responsibility to deal with issues arising
from tax years prior to the decedent's death (including tax returns that were
filed by the decedent or that should have been filed).
The personal representative has the responsibility to pay amounts due to the
IRS from the decedent and the estate and may be personally liable for those
taxes. If a federal estate tax return is required to be filed, an estate tax
closing letter is necessary to clear title to Florida real property, and in some
instances in order to close the probate administration with the court.
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
The personal representative is required to send a copy of the probate
inventory to the Florida Department of Revenue. A federal estate tax return is
not required to be filed with the IRS, then the personal representative is
required to record in the public records (and file in a formal estate
administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax
return is required to be filed with the IRS, then the personal representative is
required to file a Florida estate tax return, Form F-706, with the Florida
Department of Revenue."
Regarding Florida's intangible tax, the Florida Department of Revenue may
review the inventory to determine whether the estate, or the decedent while
alive, failed to file a required intangible tax return or to pay intangible tax.
For estates required to file a Florida estate tax return, a nontaxable certificate
or a tax receipt from the Florida Department of Revenue is required in order to
clear title to Florida real property and in order to close a formal probate
administration.
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE
ESTATE?
Florida public policy protects the surviving spouse and certain surviving children
from total disinheritance. Absent a marital agreement to the contrary, a
surviving spouse may have homestead rights, elective share rights, family
allowance rights, and exempt property rights. In addition, certain surviving
children of the decedent may also have homestead rights, pretermitted child
rights, family allowance rights, and exempt property rights. The existence and
enforcement of these rights is often best handled by an attorney.
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN
THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN
CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under Florida law, as with most other states, a decedent may entirely
disinherit other potential beneficiaries.
18. HOW LONG DOES PROBATE TAKE?
For estates not required to file a federal estate tax return, the final accounting
and papers to close the probate administration are due within 12 months of
issuance of letters of administration. This period can be extended, after notice
to interested persons.
The federal estate tax return is initially due nine months after death and may
be extended for another six months, for a total of 15 months. If a federal
estate tax return is required, the final accounting and papers to close the
probate administration are due within 12 months from the date the tax return
is due. This date is usually extended by the court because often the IRS'
review and acceptance of the estate tax return are not completed within that
period.
Estates that are not required to file a federal estate tax return and that do not
involve litigation may often close in five or six months.
19. HOW ARE FEES DETERMINED IN PROBATE?
The personal representative, the attorney and other professionals whose
services may be required in administering the estate (such as appraisers and
accountants) are entitled by law to reasonable compensation.
The fee for the personal representative is usually determined in one of five
ways: (1) as set forth in the will; (2) as set forth in a contract between the
personal representative and the decedent; (3) as agreed among the personal
representative and the persons who bear the impact of the fee; (4) as the
amount presumed to be reasonable as calculated under Florida law if the
amount is not objected to; or (5) as determined by the judge, applying Florida
law.
Likewise, the fee for the attorney for the personal representative is usually
determined (1) as agreed among the attorney, the personal representative
and the persons who bear the impact of the fee, (2) as the amount presumed
to be reasonable calculated under Florida law, if the amount is not objected to,
or (3) as determined by the judge, applying Florida law.
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Florida law provides for several alternate, abbreviated procedures other than
Formal Administration.
Summary Administration is generally available if the value of the estate subject
to probate in Florida (less property which is exempt from the claims of
creditors) is not more than $75,000 or the decedent has been dead for more
than two years.
Under Summary Administration, the persons who receive the estate assets
remain liable for claims against the decedent for two years after the date of
death. This period may be reduced in Summary Administration by publication of
notice in a local newspaper
Another alternative to Formal Administration is "Disposition Without
Administration." This is available if estate assets consist solely of exempt
property (as defined by law and the Florida Constitution) and non-exempt
personal property, the value of which does not exceed the combined total of
up to $6,000 in funeral expenses, plus the amount of all reasonable and
necessary medical and hospital expenses incurred in the last 60 days of the
last illness.
If the decedent was not a Florida resident at the time of death, an alternate
procedure may be used to admit the will to record in Florida. This procedure is
used to establish title to Florida real property. When admitted to record in any
Florida county where the real estate is located, the "foreign will" serves to
pass title to the real estate as if the will had been admitted to probate. This
procedure is available only if either two years have passed from the
decedent's death or the domiciliary personal representative has been
discharged and there has been no estate administration in Florida.
21. WHAT IF THERE IS A REVOCABLE TRUST?
If the decedent created a revocable trust, in certain circumstances, the trustee
may be required to pay expenses of administration of the decedent's estate
and enforceable claims of the decedent's creditors. In any event, the trustee is
required to file a "notice of trust" with the court where the decedent lived,
giving information concerning the settlor and trustee.
The material on this website represents general legal advice. Since the law is
continually changing, some provisions on this website may be out of date. It is
always best to consult an attorney about your legal rights and responsibilities
regarding your particular case.
Do you have questions about
Florida's Probate Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based
solely upon advertising. Before you
decide, ask us to send you free written
information about our qualifications and
experience. Call 407-681-2700.
Do you have questions about
Florida's Probate Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based
solely upon advertising. Before you
decide, ask us to send you free written
information about our qualifications and
experience. Call 407-681-2700.
Do you have questions about
Florida's Probate Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based
solely upon advertising. Before you
decide, ask us to send you free written
information about our qualifications and
experience. Call 407-681-2700.