Florida is, as we all know, a U.S state located in southeastern region, hosting the Atlantic on the eastern side and the Gulf of Mexico on the western side. Its cities include those which the USA itself takes pride in; like Orlando, Miami and others. These are best known for their cultural and artistic taste, and the variety of the American way of living. With several beaches, theme parks and tourist attractions, Florida is a vast state to which every outsider should plan on visiting.
Since it has attained such popularity, Florida has, of course, defined and implemented rules for its inhabitants and tourists alike. These laws, like any other country or state, become stronger with the growth of the state. This is especially true with probate law, which has been discussed in Florida’s judiciary and given a separate set criterion. Read on to get to know more spefically about Florida Probate Law. Let us start with the basics.
The dictionary meaning of Probate is as follows: It is the official proving of a will if the descendant of a certain person has been left with no will. It is necessary to pass on the ownership of the ancestor’s assets to the descendant who has the rights to receive them and that’s what the Florida Probate Law aims at. At its most basic, it states that it is necessary to wind up the decedent’s financial affairs after his death. It is a court supervised process where court tries to identify and gather the assets for the descendant. Furthermore, it makes sure to put in full effort to distribute it equally among the beneficiaries. The Florida Probate Law is found in Chapter 731 of the Florida Statutes and there are also Florida Probate Rules on how to proceed and take action on implementing the law. The most common probate assets are listed below:
- A bank account whether in the form of an investment or a current account in the sole name of the decedent.
- An annuity contract or individual retirement account payable to the decedent’s estate. It may or may not include life insurance accounts.
- Real estate titled in the sole name of the decedent is a probate asset.
According to the Probate law of Florida, when an individual dies the estate assumes temporary ownership of all of the person’s property as well as the responsibility of his debts. It is a legal entity according to Florida’s law and it is done to ensure that an individual’s property is protected and there is a smooth transition of his/her assets in accordance to his/her will if any. Once this is done, the state legally approves of transfer of ownership of all property to any required number of beneficiaries.
Assets on Which Florida Probate Law is NOT Applicable:
This law is not applicable on every asset. For example a life insurance policy, a bank account that pays on death to a child, jointly owned real estate or partnership in other financial properties etc. are some conditions where Florida Probate Law is not implemented.
Executor, Will and Rules
In Probate Law of Florida, it is also included that if a person dies with a will to his name, it becomes the duty of the state to find out whether this will is valid or not. Florida Probate Law has also defined the rules to write a will, such that if the will is not written according to the predefined law, then it will not be considered legitimate and will be marked as legally invalid. In such a situation it is under the terms of Probate Law that a personal representative is then appointed to takeover of the responsibility of the decedent’s assets. In Florida, this personal representative is usually an executor of the decedent’s will. He is, thus, made responsible for the administration of a decedent’s estate and property. Under the representative’s directions, the decedent’s assets are accumulated and distributed, his debts are paid and the complete accounting of all the assets is then finalized. The case is then closed in entirety. There is, however, a condition in Probate Law for the executor which states that he also becomes responsible in preparing and filing out the USA Estate Tax Return and Fiduciary Tax returns.
Another very important rule of Probate Law regarding Tax returns, states that if the decedent’s gross estate exceeds $5,340,000 then under United State tax return Law; an executor must have to fill out tax form 706 within 9 months of the decedent’s death. This acts as a guarantee from the executor to the estate, which if not given, all the assets of the decedent will be transferred to the estate’s account.
Steps to Transfer Decedent’s Assets to an Executor
Once an executor claims for the decedent’s asset and he/she has a will then he/she has to contact his/her attorney. The following are the requirements of the attorney himself to assist the executor in the administration of the decedent’s assets:
- The decedent’s original will.
- At least two death certificates with the cause of death.
- Copies of bank statements for the month of the decedent’s death.
- Copies of brokerage statements for the month of the decedent’s death, including any certificates of deposits.
- Copies of any stock or bond certificates that the decedent may have held outside of a brokerage account.
- Copies of any general or limited partnership certificates or agreements.
- Copies of mutual fund accounts.
- Copies of deeds to real property wherever situate.
- Life insurance policies.
- Past three (3) years’ 1040’s.
- Copies of any gift tax returns (Forms 709) which have been filed, if any.
- Copies of any state income tax returns that may have been required to file for the past three years.
- Copies of certificates of title for any automobiles the decedent owned.
- List of all personal property the decedent owned including the estimated value.
- Name, telephone number and address of the decedent’s accountant.
- Any other evidence of assets the decedent owned not otherwise noted above.
Florida Probate Law Administration
There are generally two types of probate administration on Florida’s law.
- Formal Administration
The most common type of administration is Formal administration. When the estate does not qualify for Summary Administration or any of the alternatives (which it usually doesn’t), it must go through formal administration! Even though sometimes it may not be necessary, it is still considered the best choice and often commonly chosen.
It involves a Florida Probate Lawyer signing a petition and collecting all required documents for the administration to occur. Then, letters of administration are sent out and personal representatives of the estate handle the matters. From there forward, the attorney’s job is almost done, and it is up to the Florida Probate Law personal representative to collect any information needed and complete the process smoothly.
- Summary Administration
Summary Administration is less common than Formal, because of the simple fact that it is only applicable if the estate property is in total, less than or equal to $75,000 when accounted for, or when the decedent has been dead for 2 years or more. Moreover, the decedent’s debts must be paid already. This is, although less common, the easier and shorter method of getting the job done, as it doesn’t require a personal representative.
It starts off with the similar signing of a petition, which factually proves the use of Summary Administration. The assets of the estate are immediately distributed to beneficiaries and creditors upon the entry of the order admitting the estate to probate.
Summary Administration becomes null however, if the decedent’s will states that not Summary, but Formal Administration be used to distribute his property and assets.
A special case administration, also known as non-court supervised administration, is used for the disposition of personal property without administration and is applicable only in limited circumstances. There is also a probate administration which is only applicable to probate assets.
These are just some of the most common aspects of probate law in Florida.
If you have a Florida property you want to consider selling, talk to us at Probate Solutions FL and we can give you assistance as to what all of your options are. There is no obligation and we truly want to find the solution that’s best for you.