What Rights Do The Surviving Family Have In The Probate Process?

If the decedent named family members as beneficiaries in the will, then the rights of those family members are essentially the same as any other beneficiary named in the will. Family members usually have the benefit of certain exemptions, particularly with respect to the decedent’s homestead and certain types of tangible and intangible personal property.

Family members named in the will or those that are entitled by law to inherit from the decedent when there is no will, have a right to be kept abreast of the probate proceeding, which includes receiving a copy of the estate inventory, with respect to which the family member can file an objection. They also, among other things, have the right to receive a full accounting of all expenses, costs, assets, and income of the estate, and to see the proposed distribution of the assets to the beneficiaries. The family member can also file an objection to the final accounting and proposed distributions.

The surviving spouse of a decedent has the right to an elective share of the decedent’s estate, as provided for and defined by Florida law. If the statutory elective share is greater in value than the amount the surviving spouse would receive under the decedent’s will (or if the surviving spouse is excluded or omitted from the will), then the surviving spouse can file to receive an elective share of the decedent’s assets and property. The elective share consists of 30% of the elective estate, as defined by statute, subject to certain setoffs and adjustments as provided for in the elective share statutes.

If the decedent died with no will and did not have a substantial amount of non-probate assets, then the surviving spouse may be well advised to not file for the elective share, because the spouse’s share when there is no will is generally equal to at least 1/2 of the probate estate.

How And Where Are Probate Proceedings Initiated?

The probate proceeding is initiated by the filing in court of a petition for administration. The petition, among other things, identifies the decedent and his or her age at the time of death, the county and state of the decedent’s domicile, the names and addresses of the beneficiaries of the estate (whether the decedent died with or without a will), and requests that a certain person be appointed personal representative of the estate. The petition also references the nature and approximate value of the assets of the estate.

A probate proceeding must be filed in the county in Florida where the decedent was domiciled. If, however, the decedent was not domiciled in Florida, then the proceeding can be filed in any county where the decedent’s property is located; or in any county where a debtor of the decedent resides in those situations where the decedent had no domicile or property in Florida.

What Happens In Florida If Someone Dies Without Any Estate Planning Documents In Place?

If a decedent who was domiciled in Florida, or resided outside of Florida owning property in Florida, had no will or living trust, then, an intestate(no will) probate proceeding will be necessary to, among other things, appoint a personal representative, determine the identity of the heirs of the decedent’s estate, determine the nature and value of the decedent’s assets over which Florida has jurisdiction, and provide any creditors with notice and the opportunity to file claims against the estate.

What Is Involved In A Trust Administration?

The administration of a trust encompasses the duties and obligations of the successor trustee named in the trust to carry out the terms and directives of the trust. Typically, the trust lists the powers and responsibilities of the successor trustee, which become effective upon the death or incapacity of the person who made the trust (the Grantor or Settlor). The successor trustee is required to act with a high standard of care in the administration of a trust. A breach of this standard of care could result in the successor trustee being held liable to the beneficiaries of the trust for any damages caused by the breach.

Florida law requires that upon the grantor’s death the successor trustee file a notice of trust with the clerk of the probate court in the county where the decedent resided at the time of death. This notice must be filed even if it will not be necessary to probate the decedent’s estate, which should not be necessary if, as of the date of death, all of the grantor’s assets were in the name of the trust. The trust itself does not have to be filed, and the purpose of the notice of trust is to make the public aware of the trust and the successor trustee’s contact information. Unlike a probate, the administration of a trust is not a public proceeding, and formal representation by an attorney is not required. Nevertheless, a successor trustee would be well advised to seek the advice and assistance of an experienced probate and trusts attorney before attempting to fulfill the administration of a trust.

The successor trustee should make a full inventory of the trust assets, because, he or she is required to promptly make full disclosure to the beneficiaries of the trust, the nature, extent, and value of the assets in the trust. It is the responsibility of the successor trustee to distribute the trust assets to the beneficiaries pursuant to the terms set up in the trust. However, before making these distributions, the successor trustee will need to obtain a federal taxpayer identification number for the trust, and make a determination, with the advice of a CPA or tax attorney, if it will be necessary to file a 1041 income tax return or a form 706 estate tax return.

How Do I Transfer Property Into A Living Trust In Florida?

It is important that the attorney who prepares your living trust be aware of all of your real estate holdings, because, your real estate will need to be transferred into the trust by a properly prepared deed(s). If you own real estate in another state, then you will need to contact an attorney in that state (preferably in the county where the property is located) and ask the attorney to tell you what information you will need to send him or her to transfer the property in that state into your trust. It will be important to remember that, if and when you acquire more real estate, to follow the same procedure, that is, be sure that the real estate is properly titled in the name of your trust.

It is also important that your non-real estate assets, such as banking and investment accounts, be titled in the name of your trust. This can be accomplished by your providing your bank and investment counselors with the trust documents they will need to title your accounts in the name of your trust.

For more information on Rights Of Surviving Family In Florida Probate, a consultation is your next best step. Get the information and legal answers you are seeking by calling (352) 369-0664 today.