Wills, Trusts, and Estates Laws in Florida

Although the State of Florida does not require an individual to have a will or trust, it is important for an individual to have an estate plan. An individual should have a will even if they already have a living trust set up. This will make everything as easy as possible for an individual’s loved ones. If an individual has any questions about creating an estate plan, they should consult with a local Florida lawyer.

Is a Trust Necessary to Avoid Probate?

When an individual passes away, their will often has to be processed through probate court. To probate a will means that the will goes through a process that settles and distributes an individual’s property, assets, debts, and general affairs.

In addition, the probate process is used to:

• Validate wills;
• Appoint an executor for the estate;
• Make other determinations regarding the decedent’s property.

The probate process also establishes a plan for paying off any outstanding debts and taxes that are owed by the estate of the decedent. Examples of goals of the probate process include:

• If the decedent died without a will or intestate, determining who the heirs are under the law;
• Determining the legality and authenticity of the will;
• Preventing executor misconduct, such as fraud;
• Resolving disputes among beneficiaries;
• Identifying and taking inventory of the decedent’s personal property;
• Having certain property appraised, for example, land and valuables;
• Evaluating any debts, outstanding claims, or lawsuits relating to the decedent’s estate;
• Paying off the decedent’s remaining debts and taxes; and
• Distributing the decedent’s property.

The probate process may be complex and extensive, as an individual may have numerous belongings and assets in their estate that have to be processed. Probating a will may also be more difficult if an individual challenges the validity of the will or the validity of a gift within the will.

An individual might have not received a gift under the will but believed that they should have. In this case, they may argue that an individual exerted undue influence on the decedent, and the gift went to that individual instead of the beneficiary who was expecting it.

Does Florida Have Its Own Probate Code?

The Uniform Probate Code (UPC) is a body of federal laws that govern wills, trusts, and estates. The UPC was created with the intent to make court procedures less expensive and simpler.

The UPC governs:

• Determination of a will;
• Functions of an executor;
• Process of administering an estate.

Currently, the UPC has been adopted by 18 states. This does not include the State of Florida.

Instead, the State of Florida has its own statutes and laws that govern probate, wills, trusts, estates, and other related issues. For example, Florida estate laws require that any individual who is in possession of a will file it with a local Florida circuit court within ten days of learning of the individual’s death.

The court will determine whether full probate court proceedings will be required as well as whether the will needs further validation. In addition, there are specific Florida intestacy laws.

Why Is It Important to Have a Local Florida Lawyer for Probate Issues?

When an individual is facing probate or other related issues, it is important to work with a local attorney for advice and guidance. A local attorney will have the experience and knowledge required to help with legal issues that may be specific to Florida.

A local Florida lawyer will be familiar with the various courts and judges in the area, as well as experience with specific legal issues in the county or city where the will is being probated. A resident of an area such as Orlando would benefit from hiring an Orlando estate lawyer instead of a lawyer who works in Miami.

Florida residents may face unique issues with wills, trusts, and estates. Because of this, having a local lawyer will help ensure they get the help they need.

It is important to note that estates in Florida may be more complex than estates in other states. Florida is a popular retirement location for individuals who are originally from other states.

Senior citizens who relocate to Florida may own property and assets in a different state. These individuals may also be residing in a retirement home or senior nursing home.

Both of the issues previously discussed may complicate probate issues.

What Are Some Common Issues Dealt With Under Florida Probate Laws?

Individuals often wonder whether or not all property has to pass through the probate process. In the State of Florida, there are certain property items that do not have to pass through the probate process and may, in some cases, pass directly to the new owner.

Examples of types of property that are not always required to pass through probate in Florida include:

• Real estate property owned as tenancy by the entirety or as joint tenants with rights of survivorship, which may include:
  • A house owned by a married couple;
  • Joint bank accounts held by more than one individual;
  • Other similar property situations;
• Property that is held in a revocable trust;
• Bank accounts that are associated with certain clauses, for example, payable on death or transfer on death clauses;
• Property that is subject to community property agreements between the deceased individual and their surviving spouse;
• Transfer on death deeds;
• Assets where the deceased individual has previously designated a beneficiary;
  • Common examples of these include:
    • Life insurance benefits;
    • Retirement accounts;
    • Other similar types of transferable assets; and
• Assets that are held in a living trust.

The State of Florida is one of the few states that have provisions that govern lawyers’ fees in its probate statutes. Under Florida probate laws, attorneys’ fees are based on the value of the assets that are passing through probate, including any income that is earned during the probate proceedings.

In some situations, attorneys may have a choice regarding whether or not they want to follow the fee schedule listed in the statutes.

What Is “Summary Administration” in Florida?

Florida probate laws are unique because they follow summary administration in certain cases. This may be referred to as a probate shortcut or probate light.

Summary administration is a streamlined version of the probate process. This option provides for a more efficient and quicker administration of estates that are eligible.

In general, summary administration may be completed within two to four months, whereas formal administration will take at least one year to complete. Summary administration proceedings are only available in certain cases.

Summary administration will only be available if two out of the three factors listed below apply:

• The decedent’s will does not specifically state that it is to be submitted to standard probate;
• The total amount of property that would have to pass through probate does not exceed $75,000 in total value;
• The deceased died more than two years ago;
• The reason for the two-year limitation is that any individual owed money from the estate has two years to bring their claim forward;
• Once this period has passed, all outside claims will be barred, which simplifies the probate process.

In order to initiate a summary administration, the named executor of the estate has to file a document called the Petition for Summary Administration. The petition has to include a list of the deceased’s total assets and value.

The petition should also state which individuals will be inheriting which property items.

Do I Need a Lawyer if I Am Dealing With Probate in Florida?

If you have any questions about wills, trusts, and estates in Florida, an individual should consult with a Florida wills attorney. Because Florida is a state that does not incorporate the UPC, there are provisions and regulations that are unique to the area.

You may need help with the probate process or have any questions about the process. If this is the case, your lawyer can provide you with guidance. Your lawyer can also provide advice to help you meet the requirements for successfully administering the estate of your loved one.