Probate resources and answers every family needs!
Want to talk to us were here to help! Call "Chris" 954-540-9019
We are providing this information because of the challenges of our past clients have had. Trying to get probate information. They came to us to get direction, evaluate property values and help them with the Real Estate questions. We found that our Clients had a lot more probate questions and in general were somewhat lost. That being said, Henry and I have outlined the important things anyone should know should they lose someone. We included things you will need to get for your attorney, as well. We took training and acquired Certifications as "Probate Real Estate Specialist 's ". This training allows us to better assist clients and understand their attorney's needs.
Here are the first steps to begin dealing with the deceased persons final affairs.
First, Important things to be aware of:
You have 10 days under Florida Law to file with the Circuit court after learning of the death. There will be fees to hire an attorney to handle the probate matter as well as filing fees with the court. Even some trusts will require a filing if the assets were not kept updated in the trust.
You will need to file a death certificate or other proof of death to the court.
The court filing will be in County and State that the person resided.
Getting a CPA or accountant involved to help determine the tax liability is important> Also whether you will need to sell any real property or be able to retain it.
Hiring an attorney is a must!
The attorney you hire will be asking for information such as:
The will or trust papers.
Names, addresses of family members, relatives or friends named in will or if no will is known to exist, ask an attorney what is needed.
Names of the bank(s), addresses, account numbers and who are known signers. Is there any safe deposit boxes. You may need a court petition filed and approval to open safe deposit box.
List of all real property owned (the county appraiser is a good place to look for information) An inventory of the assets and values should be submitted to the court within 60 days following the letters of Administration.
Have you gotten any values of the real property, secured the premises, which would include:
Changing locks, secure valuables, turn off the water, remove flammables, turn off natural gas, maintain the yard, find out alarm provider and change codes, forward mail or arrange to get it picked up. Stop magazines coming and newspapers. Notify Social Security and veterans administration if applicable. Look into the insurance and payments due. Protection of both real and personal property. Notify County if there is a Homestead Exemption, so you don't get penalized.
List of all creditors names, addresses, and bills (this can come after first meeting with an attorney). This may include filing public notices and there is time limits that creditors have to respond once notified.
Last known Tax information filed-Who was CPA or tax advisor. There is time limits on filings of decease returns and extensions ask an accountant so you know.
List of securities accounts, beneficiaries etc.
Be aware some banks may not talk with you until the court is involved.
The attorney may need to send out notices of administration to the surviving spouses, beneficiaries, or anyone that may be entitled to the exempt property. Ask the attorney about what might be exempt and how are objections handled should they arise.
There is a mandatory minimum of 90 days open notice period regarding creditors.
In general the process over-simplified is: Get an attorney to determine what type of filing and what course of action is needed to move forward, Most often wills go to court, Petition for Administration is made, Appointment of personal Representative made by the court, Petition to open safety deposit boxes done, Inventories and values of all property, Validity of Will determined and who-how-and what will happen to the assets, market values determined and distribution if any made, Interim accounting, final accounting and Closing of the estate.
The first step, an attorney will file a petition with the court and decide what type of administration would be appropriate. It will take 30 to 45 days for the court typically to answer the Petition of Administration. This step in most cases will give permission to sell either pending all relatives’ sign off (limited power) or just the executor of property permission to sign off (full power). The closing funds will be dispersed according to the court's determinations.
Other common questions:
WHERE ARE PROBATE PAPERS FILED? Skip down to answers
WHAT HAPPENS IF THERE IS NO WILL?
WHY IS PROBATE NECESSARY?
WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?
HOW IS THE INTERNAL REVENUE SERVICE (IRS) INVOLVED?
To see Glossary of Probate terms.
For List of Florida County Clerks and Contact Information
To check out the suggested attorneys fees per the State of Florida.
to leave us any questions you may have or contact US!
This is a general outline of many but not all of the important factors about probate. We are not attorneys and suggest you get one involved early on. Should you need the services of a realtor we have the probate experience to help your family and attorney.
We hope this has been helpful!
Chris Snyder and Henry Aleman
Chris@contactPAR.com Premier Associates Realty, LLc
Where are probate papers filed?
The decedent’s will, if any, and certain other documents required to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county in which the decedent lived at the time of death. The custodian of a will deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. (S. 732.901, Florida Statutes.) There is no fee to deposit the will with the clerk of court. However, a filing fee must be paid to the clerk upon opening a probate matter. The clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.
What happens if there is no will?
Someone who dies without a valid will is “intestate.” Even if the decedent dies intestate, the probate assets are almost never turned over to the state of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing the distribution of the probate assets of a decedent who died intestate.
If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority (found in Part I, Chapter 732 of Florida Statutes):
· If the decedent was survived by a spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents and more remote descendants.
· If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
If the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.
· If the decedent was not married at the time of death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by that child’s own descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.
· If the decedent was not married at the time of death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
· Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.
The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.
Why is probate necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law. Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
What are the estate’s obligations to estate creditors?
One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to ‘known or reasonably ascertainable’ creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.
The legitimate debts of the decedent, specifically including proper claims, taxes and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.
How is the IRS involved?
The decedent’s death has two significant tax consequences: It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the ‘estate.’
The personal representative may be required to file one or more of the following returns, depending upon the circumstances:
· The decedent’s final Form 1040, Federal Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
· One or more Forms 1041, Federal Income Tax Returns for the Estate, reporting the estate’s taxable income.
· Form 709, Federal Gift Tax Return(s), reporting gifts made by the decedent prior to death.
· Form 706, Federal Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.
The personal representative may also be required to file other returns not specifically mentioned here.
The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.
The estate will not have any tax filing or payment obligations to the state of Florida; however, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of Jan. 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.