The Palm Beach Probate Lawyer
The Coleman Law Firm, PLLC
10161 Centurion Parkway, N, Suite 310
Jacksonville, Florida 32256
Telephone:  (866) 510-9099
Email:  Info@ThePalmBeachLawyer.com

Florida Probate Law
Frequently Asked Questions

The following information will help you understand the Florida probate rules that apply to all Florida probate estates in the Florida probate courts.


1. WHAT IS FLORIDA PROBATE?

Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing probate estate assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law establishes two types of probate administration:

1. Formal Administration, with which most of this information deals and

2. Summary Administration

        • No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the probate 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 Florida intestacy 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 exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding exempt 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 Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright.

If you need a Florida probate lawyer to represent you in a Florida probate estate in which there is no will, please call us toll free at 866-510-9099.

6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?

While there may be others, the following is a list of persons or entities often involved in the Florida probate process:

    • Clerk of the Circuit Court for Palm Beach County (See Question 7).

    • Circuit Court in Palm Beach County (acting through a Circuit Court Judge, See Question 8).

    • Personal Representative (See Questions 9 through 11).

    • Florida Probate Attorney for the Personal Representative (See Question 12).

    • 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 Beneficiaries (See Question 17).

    • Trustee of Revocable Trust (See Question 21).

7. WHERE ARE FLORIDA PROBATE PAPERS FILED?

Florida probate papers are filed with the Clerk of the Circuit Court, usually in Palm Beach County, for the Florida county where the decedent lived. A probate filing fee must be paid to the probate clerk of court to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all the Florida probate papers filed with the clerk of the probate court for that Florida probate administration.

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

A Palm Beach County Circuit Court Judge presides over Florida probate proceedings in Palm Beach County. The probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters." This probate document shows to the world the legal authority of the personal representative to act on behalf of the probate estate. The probate judge also holds hearings when necessary and resolves all questions raised during the Florida probate administration of the estate by entering written directions called "orders."

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The personal representative is the person, bank or trust company appointed by the probate court to be in charge of the administration of the probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the probate court to administer the probate estate pursuant to Florida probate law. The personal representative is obligated to:

    • Identify, gather, value and safeguard probate assets.

    • Publish a "notice to creditors" in a local newspaper, giving notice to file claims with the Florida probate court 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 with the probate court any objections relating to the probate estate administration.

    • Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed with the probate court.

    • Object to improper claims and defend suits brought on such claims.

    • Pay valid claims.

    • File tax returns.

    • Pay estate taxes and income taxes.

    • Employ necessary probate professionals to assist.

    • Pay administrative expenses.

    • Distribute statutory amounts or probate assets to the surviving spouse or family.

    • Distribute probate assets to beneficiaries of the estate.

    • Close probate administration.

If you need a Florida probate attorney to represent you as personal representative of a Florida probate estate in Palm Beach County, please call us toll free at 866-510-9099.

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.

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?

    • If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve as the estate's personal representative.

    • If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the estate.

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?

In almost all instances the personal representative must be represented by a Florida probate attorney. Many legal issues arise, even in the simplest probate estate administration.

The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the Florida probate law, and represents the personal representative in probate estate proceedings in the Florida probate court. The Florida probate attorney for the personal representative is not the Florida probate attorney for the beneficiaries of the probate estate.

A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative of the probate estate.

If you need a Florida probate lawyer to represent you in a Palm Beach County, Florida probate estate, please call us toll free at 866-510-9099.

13. HOW ARE ESTATE CREDITORS HANDLED?

Prior to commencement of Florida probate proceedings, a creditor can file a caveat with the probate court. Upon publication of notice to creditors a creditor or other claimant may file a probate document called a "statement of claim" against the probate estate with the probate Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed with the 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 with the Florida probate court a separate independent lawsuit to pursue the claim.

The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. 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 probate estate until the claim has been satisfied or otherwise disposed of.

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?

For federal income tax purposes, death triggers two things. It ends the decedent's last 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 probate 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.

The personal representative may be required to file other tax returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including income tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS for income taxes and estate taxes from the decedent and the probate estate and may be personally liable for those income taxes and estate taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court.

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the Florida public records (and file in a formal probate estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the probate inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For probate estates required to file a Florida estate tax return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?

Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a premarital (prenuptial) or postmarital agreement to the contrary, a surviving spouse may have Florida exempt homestead rights, Florida spousal elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have Florida exempt homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled by a Florida probate attorney.

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE?

Under Florida probate law, as with most other states, a decedent may entirely disinherit other potential beneficiaries.

18. HOW LONG DOES PROBATE TAKE IN FLORIDA?

For probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate court, after notice to interested persons.

The federal estate tax return is initially due nine months after death and may be extended by the IRS for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the Florida probate administration are due within 12 months from the date the federal estate tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the federal estate tax return are not completed within that period.

Probate estates that are not required to file a federal estate tax return and that do not involve probate litigation may often close in five or six months.

19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?

The personal representative, the Florida probate attorney and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by Florida probate law to reasonable compensation.

The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fee; (4) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.

Likewise, the probate fee for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative of the probate estate and the persons who bear the impact of the probate fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the probate judge, applying Florida probate law.

If you need the assistance of a Palm Beach County Florida probate attorney, please call us toll free at 1-866-510-9099.

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

Florida probate law provides for several alternate, abbreviated procedures other than Formal Administration.

Summary Administration is generally available if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

Under Summary Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Administration by publication of notice in a local newspaper

Another alternative to Formal Administration is "Disposition Without Administration." This is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to record in Florida. This procedure is used to establish title to Florida real property. When admitted to record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the real estate as if the last will and testament had been admitted to probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida.

21. WHAT IF THERE IS A REVOCABLE TRUST?

If the decedent created a revocable living trust, in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court where the decedent lived, giving information concerning the settlor and trustee.

This material represents general legal information. Since Florida probate law is continually changing, some provisions may be out of date. It is always best to consult a Florida probate attorney or estate planning lawyer about your legal rights and responsibilities regarding your particular case.

Florida Counties and cities in which Palm Beach Florida estate planning, elder law, guardianship, asset protection planning, Medicaid spenddown planning, nursing home abuse, and probate lawyers and attorneys offer Palm Beach Florida estate planning, asset protection planning, elder law, Medicaid spenddown planning, guardianship, nursing home abuse, and probate services: