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What Is The Probate Process In Florida?
Probate administration involves collecting the assets of the deceased person, also known as the decedent, paying their debts and taxes and distributing remaining property to beneficiaries. If the decedent left behind a valid will, it probably indicates a personal representative to administer the estate as well as instructions on how to do so. If the decedent did not leave a valid will, the state of Florida will select a person, bank or trust company to serve as his or her personal representative and the property will be distributed according to intestate laws.
Types of Probate In Florida
In the state of Florida, there are two types of probate: formal administration and summary administration. If an estate is worth less than $75,000, a beneficiary of the estate can request a summary administration probate within two years after the decedent’s passing. If there are no outstanding debts or objections from creditors and the petition from the beneficiary is approved, the assets will be immediately distributed. If an estate is ineligible for summary administration and other probate alternatives, it will pass through the process of formal administration.
Formal administration probate requires the courts to take an active role in each transaction and is more expensive and time consuming than summary administration. Regardless of the type of probate the estate you are administering is going through, a probate attorney from our law firm can walk you through the process and assist you with any bumps in the road.
If you recently lost a loved one, you may be interested in learning more about probate from a Forida probate lawyer on the Treasure Coast Florida. Probate is a court-supervised process for identifying and gathering a decedent’s assets, paying off the decedent’s debts, and distributing the remaining assets to the decedent’s beneficiaries. In Florida, usually the decedent’s assets are first used to pay the cost of the probate proceedings, then they are used to pay any outstanding debts and claims against the estate, and the remainder is distributed amongst the decedent’s beneficiaries. There are two different types of probate administration in Florida: formal administration and summary administration. Probate administration specifically applies to probate assets. These are assets that the decedent owned in his or her sole name at the time of death, or they can be assets that were owned by the decedent and one or more co-owners, but lacked provisions for automatic succession upon death.
Probate assets can include any one or all of the following, and more:
- Bank accounts in the sole name of the decedent
- Life insurance policies, IRAs, or annuities payable to the decedent’s estate (not to a beneficiary)
- Real estate titled in the sole name of the decedent
The personal representative is the individual named in the will, or it can be a bank, a trust company, an estate lawyer or another individual appointed by the judge who is in charge of the administration of the estate. The personal representative is responsible for administrating the probate estate according to Florida law.
The revocable trust is a trust document or agreement that is created by you to manage your assets during your lifetime and distribute the remaining assets after you pass away. As the trust-maker, you are referred to as the “grantor” or “settler.” The person who has been appointed to manage the trust assets is called the “trustee.” You can serve as your own trustee during your lifetime, or you may appoint another person, a bank, a trust company or trust attorney to serve in this capacity.
The reason why the trust is called revocable is because you can modify or amend or terminate the trust during your lifetime as long as you are of sound mind and not physically or mentally incapacitated.
With the revocable trust, during your lifetime the trustee invests and manages the trust property. In most trust agreements after working with a revocable trust attorney, the grantor is allowed to withdraw money or assets from the trust whenever they want and in any amount. However, should you become incapacitated, your trustee is authorized to continue managing the trust assets, pay your bills and make investment decisions on your behalf. One benefit of a revocable trust is that it may avoid the need for a court-appointed guardian of your property should you become incapacitated.
Once you pass away, the trustee or the successor trustee (when you were the initial trustee) will be responsible for paying all claims and taxes, and from there distributing the remaining assets to the beneficiaries named in the trust document. The trustee must formally transfer assets such as bank accounts, real estate and investments prior to your death in order to maximize the benefit of the trust.
Any assets that are not properly transferred to the trust may be subject to probate proceedings. There are certain assets that should not be transferred to a trust since it can result in unwanted income tax complications; therefore, it’s important to consult with a Trust Attorney in Port St Lucie or Palm City, Jon L. Martin to discuss the advantages of the different trusts available to you.
Are you looking for an a Florida Probate Attorney in Port St Lucie or Stuart? If so, Jon L. Martin, Attorney at Law can help you. To revoke means to withdraw, cancel, rescind, or reverse something. In the context of a trust, an irrevocable trust cannot be withdrawn, canceled or reversed, whereas a revocable trust can be changed. An irrevocable trust is a legal entity which does not allow for any type of amendments, alterations or revocations. Irrevocable trusts serve specific purposes and are used to achieve a variety of estate planning goals, including reducing or eliminating estate taxes by moving the grantor’s property into the trust.
There are various different kinds of irrevocable trusts; however, they all have two things in common: 1) people use them to reduce taxes, and 2) people use them to protect property. Some of the common irrevocable trusts include the following:
- Charitable Trusts – These are used to reduce income and estate taxes through making gifts to charitable organizations.
- Bypass Trusts – A bypass trust allows spouses to reduce estate taxes when the second spouse dies. With this trust, when the first spouse dies, the majority of their property goes into the trust and the surviving spouse can use that trust property, but he or she never owns it.
- QTIP Trusts – These trusts allow couples to delay the payment of estate taxes until the second spouse passes away.
- Special Needs Trusts – A special needs trusts provides financial support for a disabled child without disqualifying him or her for much needed government benefits.
Both revocable and irrevocable trusts are often components in a good estate plan. If you are considering establishing a trust, it’s important to speak with a qualified Florida probate attorney such as Jon L. Martin, Attorney at Law. The most significant difference between the irrevocable and revocable trust is estate tax considerations; therefore, it will be necessary to carefully evaluate which trusts would serve your purposes and shield your assets the most.
Florida law allows for an abbreviated probate procedure called summary administration. Summary administration is only available if the probate assets (less property that is exempt from creditor claims) do not exceed $75,000, and if the decedent’s debts are paid, or if there are no objections from creditors. Generally, those who receive the estate assets in a summary administration remain liable for claims against the decedent for two years after the date of death. Summary administration also applies to situations where the decedent has been dead for over two years and there has not been a prior administration.
Estate Planning and Administration for Out-Of-State Clients
Have you been named an executor of an estate in Florida, even though you live in another state? At first these legal situations can seem confusing, overwhelming and burdensome. Jon L. Martin, an Estate Lawyer, can assist you and alleviate your concerns today! No matter where you live, our law firm can help you with your estate planning and administration needs.
We have experience handling a wide range of legal matters including:
At our law firm, we do everything within our power to provide client-focused legal services. One way in which we achieve this is by offering services to out-of-state survivors/beneficiaries of a deceased Florida resident. We administer all sizes of estates and can provide you with the peace of mind you desperately seek.
During this emotional and hectic time we think that it is important that you are not additionally laden with multiple trips to Florida to administer an estate. We offer experienced legal counsel and are able to handle all of the aspects of the final affairs of a Florida decedent if you are an out of state family member that cannot be present before or after executing an estate plan.
We can explain to you everything you need to know about debt and creditor obligations, tax issues, assets passing outside of probate, property valuation, business succession and distribution of assets to beneficiaries. We offer thorough probate and estate administration services including reviewing the testamentary will, explaining the probate process, advising executors and handling all aspects of Florida estate administration in Florida probate court.