All About Probate
Probate Lawyers and Attorneys in Jacksonville, Florida for Estate Settlement and AdministrationThe probate lawyers and attorneys in Jacksonville, Florida associated with The Coleman Law Firm, PLLC, assist those who need legal representation for estate settlement or probate in Florida whether there is a will or no will, for probate court administration, real estate probate of real property in Florida, summary probate administration cases, ancillary probate for non-Florida residents who die owning real estate or other probate assets in Florida, Florida probate litigation, Florida will contests, and will disputes, in the courts of probate throughout the State of Florida. See our section on Probate Administration to learn more about the probate process and how to work with the Florida probate rules and proceed in the Florida probate courts. In that section you can also learn about the personal representative (executor) of an estate, what kinds of taxes are involved in probate matters, and what distributions family members may be entitled to in a testate estate or an intestate estate, what happens to a probate estate when there is a step-parent, and what happens in probate when there is a revocable living trust. That section explains the role of the Florida probate attorney, how fees are determined, and what happens if there is a will contest or other probate litigation that becomes necessary. Our 30+ years of experience as probate lawyers and attorneys in Jacksonville, Florida, allows us to help you avoid unnecessary delays, costs, and helps you resolve your Florida probate needs quickly and efficiently. If you need probate lawyers and attorneys in Jacksonville, Florida, please call us at 904-448-1969, toll free at 866-510-9099, or email us at Info@TheColemanLawFirm.net.
FREQUENTLY ASKED QUESTIONS ABOUT FLORIDA PROBATE
1. WHAT IS PROBATE AND FLORIDA PROBATE COURT?
a) Formal Probate Administration, with which most of this information about probate is concerned, and includes probate estates that are in excess of $75,000 of value, or in which there are multiple creditors involved, and
b) Summary Probate Administration, which involves an estate that is less than $75,000 in value, other than exempt assets (including the Florida homestead), and for which there are no outstanding unpaid creditor claims.The Florida law of probate also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.” If you need experienced probate lawyers and attorneys in Jacksonville, Florida to represent you regarding a Florida probate estate, please call us toll free at 866-510-9099, or locally at 904-448-1969.
2. WHAT ARE FLORIDA PROBATE ASSETS?
- a Florida bank account in the sole name of a decedent is a Florida probate asset that is subject to probate, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate in Florida;
- a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and not subject to probate, but a policy payable to the decedent’s estate is a Florida probate asset and is subject to probate;
- Florida law provides that real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is exempt Florida homestead) but real estate in Florida held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and is not subject to probate;
- property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
3. WHY IS FLORIDA PROBATE NECESSARY?
4. WHAT IS A LAST WILL AND TESTAMENT?
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?
- If there is a Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida probate estate.
- If there is a Surviving spouse and lineal descendants.
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 Florida probate estate plus one-half of the rest of the Florida 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 Florida probate assets and the lineal descendants share the remaining half.
- If there is No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the probate 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.
- If there is No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida 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 Florida probate 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 Florida exempt homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida exempt homestead, if titled in the decedent’s name alone, the surviving spouse receives a life estate in the Florida homestead, with the lineal descendants of the deceased spouse receiving the remainder in there in the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida homestead outright.
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
- Clerk of the Probate Court in the county where the decedent resided. In Duval County, Florida for probate matters in Duval County, Florida, the probate clerk’s office is located at 330 E. Bay Street, Jacksonville, Florida.
- For St. Johns County, the Clerk of the Probate Court is located at 4010 Lewis Speedway, St. Augustine, Florida 32084 (See Question 7).
- For Clay County, the Clerk of the Probate Court is located at 825 N. Orange Avenue, Green Cove Springs, Florida 32043.
- The Nassau County, Clerk of the Probate Court is located at 76347 Veterans Way, Yulee, Florida 32097.
- Circuit Court (acting through a Circuit Court Probate Judge, See Question 8).
- Personal Representative or Executor (See Questions 9 through 11).
- Florida Probate Lawyer or Attorney for the Personal Representative (See Question 12).
- Creditors or other 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 of the Florida probate estate (See Question 17).
- Trustee of Revocable Living Trust (See Question 21).
7. WHERE ARE FLORIDA PROBATE PAPERS FILED?
8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
- Identify, gather, value and safeguard probate assets in probate.
- Publish a “notice to creditors” in a local newspaper, giving notice to file claims and other papers relating to the Florida probate estate.
- Serve a “notice of administration” on specific persons, giving information about the will in probate and the probate timeline for estate administration and giving notice of requirements to file probate forms with the Florida probate court for any objections relating to the Florida probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the probate timeline by which their claims must be filed with the Florida probate court against the Florida probate estate.
- Object to improper claims in probate and defend law suits brought against the Florida probate estate on such claims.
- Pay valid claims of the Florida probate estate.
- File tax returns for the Florida probate estate.
- Pay taxes of the Florida probate estate.
- Employ necessary probate professionals to assist in probate, including a Florida probate lawyer or attorney in a counsel of record capacity.
- Pay administrative expenses of the probate estate.
- Distribute statutory amounts or probate assets to the surviving spouse or family.
- Distribute assets to beneficiaries of the Florida probate estate.
- Close Florida probate administration.
10. WHO CAN BE A PERSONAL REPRESENTATIVE OF THE FLORIDA PROBATE ESTATE?
- The personal representative could be an individual, multiple individuals, bank, or trust company, subject to certain restrictions as set forth in the Florida probate codes that your Florida probate lawyer can explain for you.
- 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 of the Florida probate estate.
- 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 of a Florida probate estate.
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
- If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve.
- If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the intestate probate estate. If there is no will, your Florida probate attorney can help you determine if you are entitled to preference in the appointment of the personal representative.
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE (“IRS”) INVOLVED?
- 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 probate estate, reporting income for the probate 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, to determine whether an estate tax (commonly referred to as the “death tax.”) will be due for the probate estate to pay.
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES FLORIDA PROBATE TAKE?
19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?
a) as set forth in the last will and testament;
b) as set forth in a contract between the personal representative of the Florida probate estate and the decedent;
c) as agreed among the personal representative of the Florida probate estate and the persons who bear the impact of the probate fees;
d) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or,
e) as determined by the Florida probate judge, applying Florida probate law.Likewise, the probate fees for the Florida probate lawyer or attorney for the personal representative is usually determined (1) as agreed among the Florida probate lawyer or attorney, the personal representative of the Florida probate estate and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida law.