In an effort to provide additional resources to our clients, potential clients and the Tampa Bay Area, we have posted some Frequently Asked Questions and responses below. If you have a question that isn’t addressed on our site, send us an email or give us a call and someone will be in touch with you soon.
Probate assets are those owned by the decedent at the time of his death that do not include specific beneficiary designations. This would include things like bank accounts held in the name of the decedent only or property held in the name of the decedent only.
Probate is required to distribute ownership of assets. Common examples include ownership of bank accounts, investments, properties, motor vehicles and mobile homes.
A Last Will and Testament or a “Will” is an instruction for distribution of assets after death. Importantly, if you go to the trouble of writing a will, you can achieve a distribution of your assets that is outside of the default rules contained in Florida’s rules of intestate succession. It also sets forth requirements for the person in charge of the estate, called the “Personal Representative” and can set restrictions or remove restrictions on that person’s actions.
Subject to certain limitations in Florida, any competent adult can serve as personal representative of an estate. Certain restrictions apply if the proposed personal representative has a felony record. If the deceased left a Will, typically the Will names a Personal Representative and that individual is given “preference of appointment.” For estates where the deceased had no will, the person with the closest lineal family relationship or if equal the person selected by a majority of interested heirs has preference of appointment.
A surviving spouse has rights referred to as an “elective share” that prevents complete disinheritance. The surviving spouse also has a large intestate share of an estate if the decedent did not have a will.
Probate fees can be determined by a Will but also through the contract you make with your probate attorney.
If the deceased owned property in multiple states than multiple proceedings will need to be established. Each state has the exclusive jurisdiction to transfer title to property contained within its borders. If dealing with a Florida resident who has died, Florida will open a primary proceeding and the foreign state will have a smaller ancillary proceeding opened for the specific and limited purpose of distributing property.
Florida Courts require the original last will and testament unless the photocopy can be proved by an affidavit to be a true and correct copy of the lost original will. Since that is the case, you can absolutely proceed with a copy of a Last Will and Testament and we recommend that our Clients make multiple copies, and keep electronic copies of their estate planning documents.
During the course of a probate administration the Personal Representative has an obligation to gather the assets and thereafter pay all valid creditor claims. Your probate attorney will instruct you regarding the validity of creditor claims and the timeliness of creditor claims. Invalid or untimely claims should not be paid. In the scenario where claims exceed assets, creditors are entitled to a pro-rate share of the remaining assets after costs of administration, attorney fees and personal representative fees pursuant to Florida Law.
The range for probate administration cases varies drastically. The small estate proceedings, called Summary Administrations are very shorty, typically between 3-5 weeks.
The larger estate proceedings, Formal Administrations, can vary widely depending on the size of the estate, creditor claims, whether the beneficiaries can easily been identified and located and various tax issues. All that being said, typically a formal administration is completed from between six months to a year.
Probate litigation refers to legal disputes and court proceedings that arise when there are conflicts or disputes regarding the administration of an estate during the probate process. It involves resolving issues related to wills, trusts, inheritance, and the distribution of assets.
Some common reasons for probate litigation in Florida include:
The duration of probate litigation can vary widely based on the complexity of the case, the number of parties involved, and the court’s docket. Some cases may be resolved relatively quickly, while others can take several months or even years to conclude.
Yes, you can contest a will in Florida if you have legal standing and valid grounds for contesting it. Common grounds for contesting a will include claims of undue influence, lack of mental capacity, fraud, or improper execution of the will.
If there is no valid will (intestate), Florida’s laws of intestacy will dictate how the deceased person’s assets are distributed among their heirs. Probate litigation can still arise in intestate cases, particularly when disputes over inheritance rights or asset distribution arise.
It is highly recommended to hire an experienced probate litigation attorney in Florida, especially if you are involved in a complex dispute. An attorney can help you navigate the legal process, understand your rights, and advocate on your behalf in court.
Yes, many probate disputes are resolved through negotiation, mediation, or settlement agreements without the need for a full trial. Alternative dispute resolution methods can often save time and resources while promoting amicable solutions.
The costs of probate litigation may include attorney fees, court filing fees, expert witness fees (like doctors or handwriting experts), and other related expenses. These costs can vary depending on the complexity of the case and whether it goes to trial.
Real Estate Litigation refers to legal disputes and court proceedings related to real property, including issues such as property ownership disputes, boundary disputes, landlord-tenant disputes, breach of contract, and more.
Florida Real Estate Litigation encompasses a wide range of cases, including:
The duration of real estate litigation can vary widely depending on the complexity of the case, the court’s docket, and whether the parties can reach a settlement. Some cases may be resolved relatively quickly, while others can extend for several months or even years.
A Partition Action is a legal remedy used to divide jointly-owned real property when co-owners cannot agree on its use or distribution. The court can order either a physical division of the property or a sale followed by equitable distribution of the proceeds.
You should consider filing a Partition Action in Florida when:
Yes, you can request a specific method of partition in a Florida Partition Action. You can either ask the court to order a physical division of the property, where each co-owner gets a portion of the property, or a sale of the property, with the proceeds divided among the co-owners.
When deciding on the method of partition, the court in Florida will consider several factors, including the suitability of the property for division, the preferences of the co-owners, the property’s fair market value, and whether division would be equitable under the circumstances.
The duration of a Partition Action in Florida can vary depending on the complexity of the case, court scheduling, and the willingness of the parties to cooperate. While some cases may be resolved relatively quickly, others can take several months or longer to conclude.
Yes, you can request reimbursement for expenses incurred on the property during a Partition Action. This may include property taxes, maintenance costs, or improvements made to the property. The court will consider these expenses when determining the distribution of proceeds.
Yes, a co-owner can usually bid on and purchase the entire property in a Partition Action in Florida. However, this purchase must be made at a fair market value determined by the court or through an auction process.
A Quiet Title Action is a legal proceeding used to establish or confirm ownership of real property and eliminate competing claims or disputes regarding the property’s title. It aims to obtain a clear and marketable title for the property owner.
You should consider filing a Quiet Title Action in Florida when:
Common grounds for filing a Quiet Title Action in Florida include:
The Quiet Title process in Florida involves filing a lawsuit in court to resolve title disputes. It typically includes:
A successful Quiet Title Action in Florida results in a court order that confirms your ownership of the property and eliminates any adverse claims or clouds on the title. It provides you with a clear and marketable title, allowing you to use, sell, or convey the property without hindrance.
The duration of a Quiet Title Action can vary depending on the complexity of the case, court scheduling, and the number of parties involved. Some cases may be resolved relatively quickly, while others may take several months or longer to conclude.