According to the Florida Office of the State Courts Administrator, during the 2019-2020 year, the probate docket had a total of 132,284 filings. This includes 57,997 probate cases and 790 cases regarding trusts. When court dockets are busy, the time frame it takes to complete and close a probate case can become extensive due to the judge’s docket. With proper estate planning, you may completely avoid probate. We are going to review some of the probate complications that frequently arise during the administration of an estate.
The Probate Process
If the decedent does not have an estate plan in process and dies intestate (without a will) the State of Florida will require the administration of the estate through a Florida probate court.
The process includes the appointment of a personal representative or executor. That is the person who will manage the distribution of assets and closing of the estate. The distribution of the person’s assets is set forth in the Florida Probate Code regarding intestate succession. This means that if you die without a will the law determines the distribution of your assets.
The duties of a personal representative include:
- Identify, gather and value decedent’s assets
- Publish a “Notice to Creditors” in a local newspaper
- Serve a “Notice of Administration” on all potential beneficiaries
- Search for and notify any creditors of the decedent
- Pay valid creditor claims and object to improper claims
- File tax returns and pay taxes on behalf of the decedent’s estate
- Pay expenses for the administering of the estate
- Hire and pay appropriate professionals to assist with the administration of the estate
- Distribute assets to beneficiaries in accordance with the decedent’s will and trust or pursuant to intestate law
- Close the probate estate
If a personal representative fails to perform their duties or mishandles the assets of the estate they may be held personally liable. This situation could present as a probate complication in Florida.
Arguments Between Family Members and/or Beneficiaries Can Create Probate Complications
With the modern family mixture of divorces and remarriages, resulting in children that can be yours, mine, and ours, conflicts may arise following a person’s passing. Conflict may be alleviated by proper estate planning.
When you establish a revocable trust that has all assets properly listed in it at the time of your death, your family may be able to avoid the probate process. This allows them to keep the distribution of your assets out of the court system, saving time, court fees, and legal fees.
A revocable trust allows you to handle your trust and assets during your life You can make changes during your lifetime. At the time of your death, the trust becomes an irrevocable trust, meaning changes are no longer permitted.
If you do not make appropriate estate plans and die with assets in excess of Seventy-Five Thousand Dollars ($75,000.00) your family will have a legal obligation to conduct a formal probate administration. Florida law mandates the hiring of an estate attorney to oversee the probate process.
Even with the best plans, there may be family members that contest your will or claim it is not valid. The person who files an objection must have “standing,” which means that had you died intestate they would have been eligible to inherit under intestate law. Contesting a will may be successful if the person filing the objection can provide evidence that:
- The decedent has more than one will
- The decedent may have signed the will under duress
- That the decedent’s mental capacity was diminished at the time of signing
- That the will was signed due to deception or fraud
- That the will is not properly signed or witnessed
- That the will is a forgery
The time and expense to litigate a contested will are significant. If you wish to contest a will or another family member is contesting a will you believe to be valid, you need to consult with a Florida probate attorney to protect your interests.
Our knowledgeable Florida probate and inheritance attorneys stand ready to help you resolve any probate obstacle you encounter.
Personal Representative/Executor Declining Role Can Become a Probate Obstacle
If the deceased has a will and trust, they likely have designated the person they believe best able to effectively administer the distribution of their estate. Quite often the appointed person is the eldest child, sibling, or other relatives. The decedent may also have selected a professional with experience handling probate in Florida, such as an estate attorney.
Most persons who are nominated as the personal representative assume the role. There are times when a person may decline the appointment, in which case the court will need to appoint another person. The recommendation is that a will and/or trust includes at least one or two alternatives if the first nominee is unable or unwilling to fulfill the duties.
In addition to a person declining the position, there are also times when someone objects to the appointment. In this instance, the parties will need to appear before the probate judge and provide reasoning for their request to remove the appointee. The judge will make a determination on whether or not to proceed with the decedent’s request or appoint someone new.
Assets in Multiple States Can Prove a Probate Complication
It is not unusual for decedents to own real property in more than one state. This can happen when people live close to state borders, owning property that crosses the border, encompassing two states. It is also common with “snowbirds” who have residences in northern states in the summer and southern states in the winter.
If the decedent owns property in more than one state, it will be necessary to undergo probate administration in each state. Real estate falls within the laws of the state in which it is located. If the decedent has property in their birth state of New York and also purchases property in Florida where they stay during the winter, a probate court will need to be conducted in each state.
The first course of action will be to determine which state the decedent lists as their home state of domicile. This will be listed on the death certificate as their last residence. Another point of reference would be the address on their driver’s license and voter registration.
The state of domicile is where the initial probate will open, and that state will have control over all tangible personal property, including jewelry, vehicles, bank accounts, etc. If the decedent has real estate in New York then there will be an ancillary probate process to handle the selling or transfer of that property.
Because of the administration of an estate in which the decedent with multiple state assets, it is advisable to enlist the assistance of a probate attorney in each state. They will have the knowledge of their respective state laws and will make sure probate is complete according to the law.
Inventory of Estate Assets
When you serve as a personal representative of an estate, one of the most time-consuming tasks is that of compiling the inventory of the estate assets. Florida Probate Rule 5.340 requires the personal representative to submit the inventory of assets to the court no more than sixty (60) days following the opening of the estate.
The inventory must include all financial and personal property, including real estate. It must include the estimated or assessed value of each item. You may amend the inventory after filing if additional assets are found.
All beneficiaries receive a copy of this inventory and have the opportunity to object to any value they feel is inaccurate. They may also object if they feel all assets are not on the list.
Conflicts Over Handling of Decedent’s Home
There are a variety of reasons why conflicts arise over a decedent’s home. It may be more than one person has a desire to obtain and reside in the home, or one beneficiary may want the home sold and proceeds disbursed and another wants the home to remain in the family. The best way to prevent such conflicts is for the handling of real estate to be addressed in the will.
In Florida, the selling of a decedent’s real property must be handled properly due to the homestead status requirements. The homestead status provides creditor protections and restrictions regarding the transfer of the property. The property must be appropriately dealt with in the Florida probate court for it to receive title clearance.
Not Seeking Guidance of Probate Attorney
Many people accept the appointment to serve as a personal representative without understanding the extensive amount of responsibility they are undertaking. As a personal representative, you have a requirement to follow court rules and procedures. Not doing so could create a whole host of probate complications.
If you error in the writings of documents you submit to the court, the judge may refuse to sign court orders. That is why Florida requires a probate attorney to oversee the process.
When You Encounter Probate Complications
If you have not yet set up your estate plan or are seeing as the personal representative of an estate and want to avoid probate complications, contact the Boyer Law Firm, P.L. We will provide you with legal representation and guidance on handling all aspects of your estate plan and the probate process.
We are familiar with the laws and steps the State of Florida requires during the administration of an estate and will work to expedite the process, allowing for the disbursement of assets to beneficiaries as quickly as possible. Contact us today to schedule a consultation using our online form or email us directly at [email protected] While you are there sign up to receive our monthly legal news updates.