How Does Formal Probate Work In Florida?

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Formal probate is the legal process that is used in Florida to administer a deceased person’s estate when they have passed away with a valid will, or when they passed away without a will (intestate). Here are the steps involved in a formal probate in Florida:

  1. Filing the Petition: The probate process begins when a petition is filed with the probate court. The petition is typically filed by the personal representative named in the will or appointed by the court if there is no will. The petition must include information about the deceased person, their assets, and the names and addresses of their beneficiaries.
  2. Notice to Creditors: The personal representative must notify the deceased person’s creditors of the probate proceeding, and they must also publish a notice to creditors in a local newspaper. Creditors have a set period of time to make a claim against the estate, usually three months.
  3. Inventory and Appraisal: The personal representative is required to prepare an inventory of the deceased person’s assets and have them appraised. This is necessary to determine the value of the estate and to ensure that all assets are accounted for.
  4. Payment of Debts and Taxes: The personal representative must pay any valid debts and taxes owed by the deceased person or the estate.
  5. Distribution of Assets: After all debts and taxes have been paid, the personal representative can distribute the remaining assets to the beneficiaries named in the will or heirs at law if there is no will.
  6. Closing the Estate: Once all of the assets have been distributed, the personal representative can close the estate. This involves filing a final accounting with the probate court and obtaining approval of the accounting from the court.

The formal probate process can be time-consuming and expensive, and it’s important to work with an experienced probate attorney to ensure that the process is carried out correctly. An attorney can help guide you through each step of the process and can help you avoid potential pitfalls that could delay the process or lead to legal disputes.

Types of Wills in Florida

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There are several types of wills in Florida that you may want to consider as part of your estate planning process. Here are some of the most common types of wills in Florida:

  1. Formal Will: This is the most common type of will in Florida, and it is typically prepared by an attorney. A formal will must be signed by the testator (the person making the will) and two witnesses in the presence of each other. The witnesses must also sign the will in the presence of the testator. A formal will can be used to distribute your assets, name a personal representative (executor), and nominate guardians for minor children.
  2. Holographic Will: A holographic will is a handwritten will that is signed and dated by the testator but is not witnessed. In Florida, holographic wills are generally not recognized as valid, with a few exceptions such as if the will was created outside of Florida but is valid in the state where it was created.
  3. Nuncupative Will: A nuncupative will, also known as an oral or deathbed will, is a spoken declaration of the testator’s wishes that is made in the presence of witnesses. In Florida, nuncupative wills are generally not recognized as valid, except in certain limited circumstances such as for members of the armed forces who are on active duty.
  4. Self-Proving Will: A self-proving will is a type of formal will that includes a notarized affidavit signed by the testator and witnesses. This affidavit serves as evidence that the will was executed properly, which can make the probate process smoother and faster.
  5. Living Will: A living will is a legal document that outlines your wishes regarding medical treatment if you become unable to make decisions for yourself. A living will can specify the types of medical treatments you do or do not want, such as life-sustaining treatments.

It’s important to work with an experienced estate planning attorney to determine which type of will is right for you and your specific circumstances. An attorney can help ensure that your will is properly executed and meets all legal requirements in Florida.

 

Lady Bird Deeds In Florida

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A Lady Bird Deed, also known as an Enhanced Life Estate Deed, can be a useful estate planning tool for homeowners in Florida. Here are a few reasons why you may want to consider having a Lady Bird Deed for your homestead property:

  1. Avoiding Probate: When you pass away, your property typically has to go through the probate process before it can be distributed to your heirs. This process can be time-consuming, expensive, and can tie up your property for months or even years. A Lady Bird Deed can help you avoid probate by allowing your property to pass directly to your designated beneficiaries without going through probate.
  2. Retaining Control of Your Property: With a Lady Bird Deed, you retain control of your property during your lifetime. You can continue to use and enjoy your property, sell it, or mortgage it without the need for your beneficiaries’ permission.
  3. Medicaid Planning: If you require long-term care in the future and need to apply for Medicaid, a Lady Bird Deed can help you protect your property from being subject to Medicaid estate recovery. This means that your property would not be sold to pay back the government for any Medicaid benefits you received.
  4. Flexibility: Lady Bird Deeds offer flexibility and can be revoked or amended during your lifetime. This means that if your circumstances change, you can change the beneficiaries or revoke the deed altogether.
  5. Homestead Exemption: In Florida, homestead property is entitled to certain legal protections, such as exemptions from property taxes and creditor claims. A Lady Bird Deed can help ensure that these protections remain in place while allowing you to transfer the property to your designated beneficiaries.

In summary, a Lady Bird Deed can be a useful estate planning tool for Florida homeowners, allowing you to avoid probate, retain control of your property, protect your property from Medicaid estate recovery, and maintain your homestead protections. However, it is important to consult with a qualified estate planning attorney to determine whether a Lady Bird Deed is right for you and your specific circumstances.

About Your Will

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You should keep your Will in a safe place.  Make sure you tell someone that you have a Will and where to find it.

You should keep this information sheet with the Will.  Attach a list of your main assets, and indicate where your other important personal documents are kept.  This list should also include information about your life insurance policies, jointly owned property, and any personal retirement plans you have set up (such as IRA or KEOUGH plans).

Do not write on your Will or attempt to change your Will yourself.  Consult with your attorney.

Your Personal Representative should contact legal counsel before proceeding with the administration of your estate.

As you know, we have taken steps in the preparation of this Will to simplify the administration of your estate.  Of course, we would welcome the opportunity to discuss your Will and your estate with you and the person you have named as Personal Representative.

We are pleased to have been able to serve you in this matter.  If you have any other legal questions or needs, feel free to contact this office at any time.