Lake City Florida Probate Lawyers and Attorneys
a) Formal Probate Administration, with which most of this information deals and
b) Summary Probate Administration, which is an abbreviated process for probate estates with less than $75,000 of non-exempt assets.Florida probate law also allows a non-administration proceeding called "Disposition of Personal Property Without Administration." [Back to Top]
· Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.
· Surviving spouse and lineal descendants.a) If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.
· No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
· No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
· Exceptions to Above. The above provisions are subject to certain exceptions for Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida exempt homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the Florida homestead outright. [Back to Top]
• Clerk of the Circuit Court for Columbia County (See Question 7).
• Circuit Court (acting through a Circuit Court Judge, See Question 8).
• Personal Representative (See Questions 9 through 11).
• Florida Probate Lawyer or Attorney for the Personal Representative (See Question 12).
• Creditors or other Claimants (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Probate Beneficiaries (See Question 17).
• Trustee of Revocable Trust (See Question 21). [Back to Top]7. WHERE ARE PROBATE PAPERS FILED?
• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the probate estate.
• Serve a "notice of administration" on specific persons, giving information about the probate estate administration and giving notice of requirements to file any objections relating to the probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist, including a Florida probate lawyer or attorney.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration. [Back to Top]10. WHO CAN BE A PERSONAL REPRESENTATIVE?
· The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
· An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative.
· A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative. [Back to Top]11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
· If the decedent left a valid will, the designated personal representative nominated in the will has preference to serve.
· If the decedent did not leave a valid will, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs. [Back to Top]
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
In almost all instances the personal representative must be represented by a Florida probate lawyer or attorney. Many legal issues arise, even in the simplest probate estate administration.
Do I need an attorney to handle an estate?
The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the probate law, and represents the personal representative in probate estate proceedings. The Florida probate lawyer or attorney for the personal representative is not the Florida probate lawyer or attorney for the beneficiaries.
A provision in a will mandating that a particular Florida probate lawyer, attorney, or firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative. [Back to Top]
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the estate with the Clerk of the Circuit Court where the probate estate is being administered. This claim is generally required to be filed with the Florida probate court within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim. A creditor, or interested person will find the assistance of a Florida probate lawyer or attorney will be beneficial when filing caveats, statements of claim, objections to claims, and separate independent lawsuits.
The personal representative is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the estate until the claim has been satisfied or otherwise disposed of. [Back to Top]
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
For federal income tax purposes, death triggers two things. It ends the decedent's last income tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."
The personal representative may be required to file the following returns, depending on income of the decedent, income of the estate and size of the estate:
· Final Form 1040 income tax return, reporting income for the decedent's final tax year.
· One or more Form 1041 income tax returns for the estate, reporting income for the estate.
· Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.
· Form 706 estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate, to determine whether an estate tax (commonly referred to as the “death tax.”) will be due for the probate estate to pay.The personal representative may be required to file other returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).
a) as set forth in the last will and testament;
b) as set forth in a contract between the personal representative and the decedent;
c) as agreed among the personal representative and the persons who bear the impact of the probate fee;
d) as the amount presumed to be reasonable as calculated under Florida law if the amount is not objected to; or,
e) as determined by the Florida probate judge, applying Florida probate law.Likewise, the fee for the Florida probate lawyer or attorney for the personal representative is usually determined (1) as agreed among the Florida probate lawyer or attorney, the personal representative and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to, or (3) as determined by the probate judge, applying Florida probate law. [Back to Top]