Q: What Do I Do Following A Car Accident?A: If you have just experienced a car accident, following these steps could protect you from further harm after an accident.
Q: What Do I Avoid Following An Accident?A:To avoid following an accident, follow these steps:
Q: What If I Am Involved In A Hit & Run?A: If you are involved in a hit and run, the negligent driver is never identified, or otherwise do not know who caused your accident, Plaintiffs can sometimes recover in Florida through underinsured/uninsured motorist insurance. We have covered UM policies in further detail in another blog post located here.
Q: What Is Probate?A: Probate is a court-supervised process used to identify and gather the decedent’s assets; pay taxes, claims, and expenses; and to distribute assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
There are two types of probate administration in Florida:
Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”
Q: What Are Probate Assets?A: Probate assets are those assets solely in the decedent’s name at time of death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:
Q: Why is Probate Necessary?A: Probate wins up the affairs the decedent leaves behind after death. It allows the transfer of assets from the decedent to the proper beneficiary. Florida law provides for all aspects of the probate process, but with a valid will, the decedent can dictate certain decisions.Q: What Is A Will?A: 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 and names beneficiaries to receive probate assets, and can also establish a trust or trusts and designate a trustee.
In the absence of a valid will, Florida law designates the beneficiaries and designates the way to select a personal representative.Q: What Happens To Probate Assets If There Is No Will?A: Dying without a will is called dying “intestate.” The Florida intestacy statute dictates how a person’s property and assets are distributed through probate.
a. 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.
b. 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 one-half.
c. 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.
d. 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.
e. 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.Q: Who Is Involved In The Probate Process?A: While there may be others, the following is a list of persons or entities often involved in the probate process:
Q: What Is A Personal Representative? A: A Personal Representative is a person appointed by the Court to settle and distribute the estate of a deceased person according to either the deceased person’s will or the Florida intestate statute, which controls have estates are distributed when a deceased person does not have a will.Q: What Does a Personal Representative Do? A: A Personal Representative typically has the following duties:
Q: Who Can Be a Personal Representative? A: Anyone wishing to serve as a Personal Representative must
There is an exception to the Florida residency requirement if the person wishing to serve is
Q: Who Has Preference to be a Personal Representative? A: Florida courts give preference to persons in the following order to be the Personal Representative of an estate if otherwise qualified:
If there is a will:
If there is not a will:
Q: Why Does the Personal Representative Need an Attorney?A: In almost every circumstance, the Personal Representative should be represented by an attorney because many legal issues arise even when the settlement of the estate is straightforward and simple. An attorney assists the Personal Representative is properly filing all the numerous documents required by the Court when settling the estate. An attorney also helps the Personal Representative understand all the duties and powers he or she has been granted by the Court and ensures compliance with the Court’s requests.Q: How Are Estate Creditors Handled? A: A Personal Representative is responsible for sending notices to the known creditors of the deceased person in order to allow those creditors to file claims against the estate. A Personal Representative must also file a Notice to Creditors in a local newspaper so that unknown creditors may file claims against the estate. A Personal Representative (or any other interested person) may file an objection to a claim made by a creditor, which triggers a separate independent lawsuit outside of the probate process. Any claims that are not objected to are paid by the Personal Representative out of the assets of the deceased person’s estate.
Creditors may choose to file a legal document called a caveat before a probate estate is opened. In that instance, those creditors will receive notification of a probate being opened from the Clerk of Court.
Q: How is the IRS involved in the Probate Process? A: A Personal Representative is responsible for filing (when applicable) the file income tax return of the deceased person as well as an income tax return on behalf of the estate, any necessary gift tax returns for gifts made by the deceased person prior to death, and a federal estate tax return if necessary. A Personal Representative is also responsible for dealing with issues arising from previous tax periods if there are any unresolved issues.
A Personal Representative should seek legal assistance in preparation of federal estate and gift tax returns as these documents usually require complicated calculations and issues of included and excluded property.
Q: How is the Florida Department of Revenue Involved in the Probate Process? A: A Personal Representative’s duties differ based on the deceased person’s date of death.
If the deceased person died before January 1, 2000, a Personal Representative must file a Preliminary Notice and Report with the Florida Department of Revenue.
If the deceased person died after December 31, 1999, and if a federal estate tax return is NOT required to be filed with the IRS, a Personal Representative must record in the public records an Affidavit of No Florida Estate Tax Due. However, if the deceased person died after December 31, 1999, and a federal estate tax return IS required to be filed with the IRS, a Personal Representative must file a Florida estate tax return with the Florida Department of Revenue.
A Personal Representative must ALWAYS send a copy of the probate estate inventory to the Florida Department of Revenue.
Q: What Right do the Surviving Family Members Have in a Decedent’s Probate Estate?A: First and foremost, the laws of Florida protect the deceased person’s surviving spouse. Unless the surviving spouse has signed a valid pre- or post-nuptial agreement, the surviving spouse is entitled to homestead rights, elective share rights, family allowance rights, and exempt property rights.
Second, certain surviving children of the deceased person may also have similar rights including homestead rights, pretermitted child rights, family allowance rights, and exempt property rights.
Q: What Are Some Benefits of a Revocable Living Trust?A: The biggest benefit of a Revocable Living Trust is that it helps ensure that assets can be effectively managed even if their owner becomes incapacitated. For some assets, a Revocable Living Trust avoids the need for probate, ensuring privacy and sometimes resulting in a quicker distribution.
Q: If I Have A Trust, Do I Still Need A Will?A: Yes! Some assets like homestead real estate and automobiles are not well-suited for ownership by a trust, and a special kind of Will called a “Pour-Over Will” ensures that all your assets will be administered according to the terms of your Trust.
Q: What Is A Last Will and Testament?A: A Last Will and Testament is a legal document that addresses how you want your assets handled after your death. This document also names a Personal Representative, who is the person who will be in charge of distributing your assets.
Q: What Happens In Florida If I Don’t Have A Will When I Die?A: If you don’t have a will at the time of your death, your property will be distributed according to the rules written in the Florida statutes, called the “laws of intestacy.”
Q: Can I Name The Guardian For My Minor Children In My Will?A: Yes, you can name a person in your Will who you would prefer to have care and custody over your minor children upon your death BUT if there is another person with legal authority over your children, such as a former spouse, that person may have the right to custody regardless of what you put in your Will.
Q: What Is The Difference Between A Living Will and A Last Will And Testament?A: A Living Will is a legal document that provides for a person’s wishes regarding the use of life-sustaining treatment whereas a Last Will and Testament provides for the distribution of a person’s assets on death.
Q: What Are Some Advantages of Having A Last Will And Testament Done By An Attorney?A: Having an attorney draft your Will typically results in a much more comprehensive document than if you use a standard form. Attorneys can answer your questions and draft the document in a way that meets all your needs and wishes. A Will drafted by an experienced estate planning attorney will address circumstances and concerns you may not have even considered. Also, an attorney can help to reduce the possibility of conflict and ensure that the document meets all legal requirements to be effective.
Q: What is Estate Planning?A: Estate planning is the process of planning for distribution of someone’s assets after his or her death and during incapacity. The process can include planning for health care and end-of-life decisions. Estate planning is unique to each person’s situation and circumstance.
Q: Who Needs Estate Planning?A: Everyone should have some sort of estate plan. Many people put off estate planning or simply think they don’t need it. Even if you don’t think you have assets, you will still benefit from having an estate plan. If you have minor children, you should definitely have an estate plan. If you want your estate distributed according to your wishes and not by rules imposed by the state, you should have an estate plan.
Q: How Often Should I Review My Estate Plan?A: An estate plan is not permanent. Things can change and life events happen. Estate plans should at least be reviewed at least every 2-3 years. If a major change occurs, plans should be reviewed immediately. Some examples of major changes include: birth, death, marriage, divorce, large increase or decrease in net worth or assets, moving to a different state or the purchase or sale of a business.
Q: What Makes Up My Estate?A: An estate consists of all assets that you possess at the time you die. Some examples are real estate, business interests, personal property, cash, life insurance benefits, retirement plans and IRAs, stocks, and bonds.
Q: What Should An Estate Plan Include?A: Estate plans are very personal and they vary from person to person. However, the typical estate plan includes a Revocable Living Trust, a Last Will and Testament, a Living Will, Designation of Health Care Surrogate, Declaration Naming Preneed Guardian, HIPAA authorization and Durable Power of Attorney.
Q: What Is A Durable Power of Attorney?A: A Durable Power of Attorney is a document giving an agent of your choice the power to make business and financial decisions on your behalf.
Q: What Is A Health Care Surrogate?A: A Health Care Surrogate is an adult who is selected to make healthcare decisions for you when you are unable to make them for yourself.