Frequently Asked Questions
WHAT IS PROBATE?
Probate is the court process used to transfer the assets of the decedent to the beneficiaries. Probate is necessary if the decedent owned any assets in his or her sole name at the time of death. If an asset is jointly titled or has a beneficiary named directly on the asset, that asset is not subject to probate.
WHAT IS A SUMMARY ADMINISTRATION PROBATE?
A summary administration probate is an abbreviated version of the probate process. An estate may be eligible for a summary administration if the value of the estate does not exceed $75,000 or the decedent has been deceased for more than 2 years. If the estate does not qualify for a summary administration, a formal administration probate would be necessary.
WHAT IS A FORMAL ADMINISTRATION PROBATE?
A formal administration probate is necessary when the value of the estate exceeds $75,000 or the decedent has been deceased for less than 2 years. The formal administration probate requires the court to appoint a personal representative, more commonly known as an executor. The personal representative is responsible for handling the affairs of the estate. Specifically, the personal representative must complete the following duties:
- Notify all interested parties.
- Gather all of the probate assets of the decedent.
- Prepare an inventory of the probate assets of the decedent.
- Notify the creditors of the decedent of their opportunity to make a claim.
- Satisfy the creditors’ claims.
- Prepare an accounting and distribute the funds to the beneficiaries.
- Request discharge of the fiduciary responsibilities.
WHAT IS THE DIFFERENCE BETWEEN A TESTATE AND INTESTATE ESTATE?
A probate estate may either be “testate” or “intestate”. A probate estate is “testate” if the decedent has a valid Last Will and Testament at the time of death. The Last Will and Testament serves to direct the probate Judge as to who may serve as the personal representative of the estate and also the who are the beneficiaries. A probate estate is “intestate” if the decedent did not have a valid Last Will and Testament. In that case, the personal representative and beneficiaries are decided by the Florida statutes.
WHAT IS A PERSONAL REPRESENTATIVE OR EXECUTOR?
A personal representative, known as an executor in other states, is the fiduciary appointed to handle the affairs of the estate.
WHAT IS THE SURVIVING SPOUSE OF THE DECEDENT ENTITLED TO UNDER FLORIDA LAW?
In the absence of a prenuptial agreement, a surviving spouse may be entitled to the following:
1. Homestead – The surviving spouse may be entitled to either a life estate in the homestead property or a 50% interest.
2. Family Allowance – The surviving spouse and any minor children the decedent was obligated to support, may be entitled to a “reasonable” allowance during the administration of the estate, up to the amount of $18,000.
3. Elective Share – The surviving spouse is entitled to 30% of the elective estate of the decedent.
WHAT IS A WILL?
A will, also known as a Last Will and Testament, is a written document that controls the disposition of assets held in the decedents sole name, at death. The individual who creates a will is a testator (male) or testatrix (female). The Following can be accomplished in a Will:
- The Testator may direct who shall receive the assets.
- The Testator may direct who shall serve as the Personal Representative.
- The testator may create a trust within the will that protects minor beneficiaries or other family members.
- The Testator may make gifts to charity.
- The Testator may name a guardian for minor children.
WHAT HAPPENS IF A DECEDENT DID NOT HAVE A WILL?
If an individual passes away and does have a will, also known as a Last Will and Testament, the property passes in accordance with the Florida intestacy statutes. Additionally, the Court appoints a personal representative to manage the estate.
WHAT IS A POWER OF ATTORNEY?
A power of attorney is a document in which the creator of the document, also known as the principal, grants the agent the power to handle their financial affairs. A durable power of attorney continues to remain effective after the principal becomes incapacitated.
WHAT IS A LIVING WILL?
The Living Will allows a competent adult to make the decedent as to whether they wish to withhold or withdraw life prolonging procedures in the event of a terminal illness.
WHAT IS A TRUST?
A Trust is a legal document created to allow the Grantor to manage their assets during their lifetime and distribute their assets after death. A trust may either be revocable or irrevocable. A revocable trust is one that may be amended, modified or revoked during the lifetime of the Grantor.
An irrevocable trust is exactly the opposite as it is not able to be amended, modified or revoked. The trust gives the Grantor the ability to have complete control and management of the trust assets during their lifetime. Subsequent to the death or incapacity of the Grantor, the Trustee would control the assets.
The Trust allows the Grantor the following benefits, the avoidance of a guardianship in the event of the incapacity of the Grantor and the avoidance of probate in the event of the death of the Grantor. A trust may be beneficial if you have any of the following situations:
- Homes in multiple states.
- Minor children.
- Minor grandchildren.
- A complex estate plan.
- A beneficiary on government benefits.
- A beneficiary that you do not wish to receive the funds in one lump sum.
- Substantial assets that may be taxable.
- Ownership of a business or limited liability company.
Tanya believes that legal representation should be full service and that includes providing both trustworthy and knowledgeable service in protecting your money, your family and your future.