Frequently Asked Questions
Currently, there is not. However, if an estate in Florida must file a federal estate tax return, it must file a Florida return as well even though no tax is actually owed.
No, not necessarily. Unless a dispute arises and requires a hearing, neither the personal representative nor the estate attorney will actually be required to go to court in the state of Florida. Everything is typically done by phone, mail, email, and fax. There is no “reading of the will” like you would see in very old movies.
No, there is no deadline to start probate in Florida; in some cases, probate has started 50 years after a person’s death.
If family members of the decedent have paid the property taxes and no tax deeds are granted, probate does not need to be started immediately. However, in some situations, there is a practical limit, because if the beginning of probate is delayed long enough, there may be several probate administrations required due to the deaths of the initial heirs named in the will and even children of those heirs.
Sometimes it is not practical to choose summary administration even if it is available. Examples include:
- The Will leaves the property to several beneficiaries, each of whom would have to sign the contract to sell the property as well as the deed and other closing documents.
- If some of the beneficiaries named in the will are minors, guardianships may have to be set up and maintained until adulthood is reached. However, in a formal estate administration, the personal representative may avoid this through the Florida Uniform Transfers to Minors Act.
- In some cases, the location of one or more of the beneficiaries is unknown. Formal probate administration allows the accommodation of a missing heir, summary administration does not.
- In case one of the beneficiaries refuses to cooperate with the others, formal administration may be required in order to sell the property. The alternative to this is a partition lawsuit filed by one or more owners, the costs of which generally exceed formal probate administration costs.
No, very small estates that include no real property may qualify for “disposition without administration” and other estates may qualify for summary administration, which is a faster and more affordable form of Florida probate administration.
In many cases, yes, it could. A missing heir is defined as an heir who, although not on the record title, has inherited a part of the title due to the death of an owner, but cannot be located. Florida law allows the personal representative to deposit the share of any missing heir into the registry of the court after the sale of the property.
Yes, in the majority of cases you will need a Florida Probate Lawyer. When it comes to probate, Florida law requires the assistance of a certified attorney. Even though an estate lawyer is not required, formal administration involves so many technical rules and potential pitfalls that it can be very frustrating for someone who does not have experience handling this type of matter. The Florida probate system is too complex for most personal representatives to go through without guidance, and the courts are not set up to provide legal assistance. Additionally, judges in the state require all probate documents to meet certain specifications and wording requirements.
No, assets held jointly between husband and wife are almost always considered “survivorship” assets, which means that the surviving spouse will automatically own those assets upon the decedent’s death. Assets which have a “pay on death” designation, such as insurance, will pass outside Florida probate, at least when going to the surviving spouse, and the beneficiaries will not require a court order. Usually, they will be required to fill out a form, submit a death certificate, and/or take other similar steps; however, probate should not be necessary.
If the bank account is small enough, there is a possibility that the surviving spouse can get a court order obtained through Disposition without Administration, which is a self-handled, no-attorney process. The maximum amount of money allowed in such accounts to be considered “small” and the conditions that apply vary from county to county due to a very vague statute, which is subject to different interpretations. In order to get a clear answer to this question, you will need to call the probate clerk in the county where your father lived and see if there is a possibility for you to take this route. Usually, the probate clerks are very helpful in this process and can provide the surviving spouse (your mom, in this example) with the forms that need to be filed. However, when you are on the phone with them, make sure to ask for “Disposition without Administration.” If this type of administration does not apply, summary administration may be required – and that is where the Florida Probate Attorneys at Farshchian, P.A. come in.
When it comes to closing estates in Florida, this is one of the most confusing situations you can encounter. From the perspective of the bank, if someone puts the name of their son or daughter on their account, their child could take money out even before their death. Regardless of who put the money into the account, the bank is protected by Florida law. However, the courts in Florida hold that under certain facts such an account could be considered a “convenience account,” which in reality never stops being property of the decedent, and upon the decedent’s death will belong to his or her estate. In this situation, unless you are the decedent’s sole beneficiary, this has the potential to generate conflict between yourself and the estate, and legal assistance will be needed. Fortunately, guiding you through situations like this one is among the many things the Florida probate lawyers at Farshchian Law, P.A. can do for you.
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