Regardless of the size of the Sarasota or Manatee County Florida probate estate it is important to be guided through the Florida legal process by an experienced Florida probate attorney. I have over three (3) decades of legal experience assisting clients with Florida probate administration and litigation in the Sarasota & Manatee County Probate Courts.
What is a Florida Probate Asset: Florida probate law defines a "Florida probate asset" as real (real estate, vacant land, etc.) or personal (stocks, bonds, bank account, etc.) property (i) titled solely in a Florida decedent's name at their time of death, and (ii) contains no provision for automatic succession of ownership at death (in-trust for account, pay-on-death) or held jointly with rights of survivorship with another individual. A life insurance policy, annuity or retirement account with a designated beneficiary will not be classified as a Florida probate asset (unless all of the designated beneficiaries are no longer alive).
Florida Probate Process: Sarasota and Manatee County Florida probate proceedings are a court supervised process for identifying and gathering a Florida decedents assets, paying federal and state income taxes, paying creditor claims, and ultimately distributing the decedent's assets to his or her beneficiaries or heirs. A Sarasota or Manatee County Florida Circuit Court Judge presides over the proceedings. The Florida Probate Code can be found in Chapters 731 through 735 of the Florida Statutes. A Florida probate estate will be administered as testate (decedent died with a valid Last Will and Testament) or intestate (decedent died without a Will).
Formal Florida Probate Administration: This Florida probate process is required for Sarasota and Manatee County Florida estates valued at over $75,000.00 (excluding the value of Homestead Real Property, Exempt Property, joint and pay-on-death accounts, etc.). It is a court supervised proceeding where: (i) a Florida decedent's Last Will and Testament, if one exists, is accepted by the Florida Probate Judge, (ii) a Florida personal representative is appointed to administer the estate, (iii) Notice of Administration is served on all interested individuals (surviving spouse, beneficiaries, etc.) and (iv) a Notice to Creditors is published to identify unknown creditors and sent to all known creditors. After the expiration of Florida creditor claims period (ninety days) creditors who fail to file a Statement of Claim loose their right to collect on the decedent’s debt. Once all estate assets are collected, debts and taxes are paid and after the distribution of estate assets is made to the beneficiaries, the Florida Probate Estate is closed and the Florida personal representative is relieved of all duties and liabilities to the Estate. (Chapter 733 of the Florida Statutes)
Summary Florida Probate Administration: When a Florida probate estate has a value of less than $75,000 this simplified Sarasota and Manatee County Florida probate process may be utilized. Under the Florida probate process the estate beneficiaries must file a petition with the Florida probate court, request the Florida Probate Judge approve the petition and request an order distributing the estate assets. The value of Homestead Real Property, Exempt Property, joint and pay-on-death accounts, Individual retirement accounts, and life insurance are not subject to probate and do not count towards the $75,000 limitation. (Chapter 735 of the Florida Statutes)
Ancillary Florida Probate Administration: Ancillary Florida probate administration is the Sarasota and Manatee County Florida probate process conducted when a Non-Florida resident decedent dies owning Florida real estate in Sarasota or Manatee County. The probate process is required to pass legal title to the estate asset to the estate beneficiary. If probate proceedings are required in the decedent's state of residence an exemplified transcript of the probate documents (Last Will & Testament, Letters of Administration, Order Admiting Will, etc.) and a death certificate will be required to open the Florida ancillary probate proceeding.
The Sarasota and Manatee County Florida ancillary probate proceeding can be handled through either the Florida Summary Administration process or the Florida Formal Probate Administration process. Under a formal proceeding a Florida personal representative will be appointed to administer the ancillary probate estate.
Florida Probate Litigation: Florida Probate Litigation is the legal process under which an individual (beneficiary, disinherited family member, etc.) contests or disputes the administration of a Sarasota or Manatee County Florida residents estate proceedings. The basis for the contest or dispute can be an allegation of undue influence, lack of capacity, duress, fraud, lack of proper formalities, ...
ROLE OF A FLORIDA PERSONAL REPRESENTATIVE: A Florida Personal Representative (PR) is responsible for handling all of the Florida probate matters from commencement to completion (discharge by the court) through specifically detailed powers and duties articulated in great detail in the Florida probate statutes. A few of those duties and responsibilities include: acting as trustee of the assets for the benefit of beneficiaries and creditors, preparing an inventory the Florida estate assets, taking possession and control of the decedent's property (real and personal), manage the estate assets to pay all outstanding debts of the decedent, sell estate property, resolve creditor claims for and against the estate, collect all outstanding debts, pay funeral expenses, debts, and taxes of the estate, maintain estate records, file the decedent's final tax return, and make distributions to beneficiaries.
SURVIVING FLORIDA SPOUSE ENTITLEMENTS: A surviving Florida spouse has an entitlement to the following: (i) the right to "homestead real property" (or at least a life estate in the decedent's residence), (ii) the right to an "elective share" (30% of the decedents estate), (iii) the right to take as a "pretermitted spouse" (under Florida intestacy law), (iv) the right to a "family allowance," (v) the right to "exempt property," and (vi) priority in preference in serving as the Personal Representative of the Florida decedent's estate.
FLORIDA PROBATE LITIGATION - METHODS TO ATTACK/ CHALLENGE A FLORIDA WILL: A Florida Last Will & Testament can be challenged for numerous reasons. Among the basis include: (i) Undue Influence; (ii) Lack of Capacity; (iii) Lack of Proper Formalities; (iv) Fraud; (v) Duress; and (vi) Coercion.
Undue Influence: A claim of "undue influence" can be alleged when the testator executes the document as a result of improper pressure (typically from a family member, care giver, friend, etc.). The allegation can usually be substantiated when a long-standing estate plan is radically changed with different beneficiaries receiving the bulk of the decedents estate.
Lack of Capacity: Under Florida law, the individual signing a Florida Last Will and Testament ("Will") must possess the mental capacity to create the document, understand the nature and value of his/her assets, and the people to whom they are leaving their estate at death. A Will can be challenged on the basis that the signor lacked mental capacity at the time it was executed.
Lack of Proper Formalities: Proper execution of a Florida Last Will and Testament ("Will") requires the Will to be executed in front of two witnesses (who are able to acknowledge that the testator signed the document as their Will).The document may be challenged on the basis that it was not properly drafted, signed or witnessed.
Fraud: This occurs when the testator is fraudulently induced into signing an estate planning document which does not reflect their true intent.
Duress / Coercion: When an unlawful threat or pressure forces an individual to sign an estate plan that they would not have otherwise executed.
ELDER ABUSE: Additional methods to challenge a testamentary document include: misuse or abuse of a power of attorney, fraudulent procurement of lifetime property transfers, and breach of fiduciary relationship.
The Florida probate administration and litigation process can be difficult to navigate. It is important to have an experience Sarasota lawyer on your side to guide you through the legal process.