Florida Probate Law Attorneys and Lawyers In Ocala
The Ocala Probate Lawyer offers probate and trust administration services in the Ocala, Marion County, Florida area. If you need the assistance of a Florida probate lawyer in the Ocala, Marion County, area of Florida, please call us toll free at 1-866-510-9099, or email us at Info@TheOcalaProbateLawyer.com.
The following FAQs About Florida Probate Law will help provide a basic understanding of Florida Probate Law:
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
What happens if I die without a will?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?
What is a revocable trust?
Probate Law in Florida
1. WHAT IS PROBATE IN FLORIDA?
Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
Florida probate law establishes two primary forms of of probate administration:
1. Formal Administration, with which most of this information deals and
2. Summary Administration.
If you need the assistance of a Florida probate lawyer in Marion County, Ocala, Florida, for a formal probate administration or a summary probate administration, please call The Coleman Law Firm, PLLC at (904) 448-1969, toll free at 866-510-9099, or email us at Info@TheColemanLawFirm,net
Florida probate law also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration." [Back to Top of Page]
• a bank account in the sole name of a decedent is a Florida probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate in Florida;
• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset, but a policy payable to the decedent's estate is a Florida probate asset and is subject to probate in Florida;
• real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is Florida exempt homestead) but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and not subject to probate in Florida;
• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
4. WHAT IS A LAST WILL AND TESTAMENT?
A will, sometimes referred to as the Last Will and Testament, is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida probate law. A last will and testament usually designates a personal representative to administer the probate estate and names beneficiaries to receive Florida probate assets. A will can also do other things, including establishing a testamentary trust and designating a trustee.
To the extent a last will and testament properly transfers probate assets and designates a personal representative, the Florida probate estate is administered as a testate estate, and the last will and testament controls over the automatic provisions set forth under Florida intestacy law. In the absence of a valid last will and testament, or if the will fails in either respect, Florida probate law dictates the beneficiaries of the intestate estate and designates the appropriate way to select the personal representative for the probate estate.
What happens if I die without a will?
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO WILL AND TESTAMENT?
1. 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 entire Florida probate estate.
2. If there is a surviving spouse and there are no lineal descendants of the decedent, the surviving spouse receives the entire probate estate.
3. If there is a surviving spouse, and the surviving spouse has one or more lineal descendants who are not the lineal descendants of the decedent, and there are lineal descendants of the decedent who are also the lineal descendants of the surviving spouse, then the surviving spouse receives one half of the probate estate.
4. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the Florida probate assets and the lineal descendants share the remaining half of the Florida probate estate.
• 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 Florida 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 probate intestacy law provides for further disposition of the probate assets if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions for Florida exempt homestead property, exempt personal property, and a statutory family allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding the Florida exempt 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 exempt Florida homestead outright.
If you need a Florida probate lawyer to assist you with an intestate estate in probate in Ocala, Marion County, Florida, please call us toll free at 1-866-510-9099.
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6. WHO IS INVOLVED IN THE PROBATE PROCESS IN FLORIDA?
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 Marion County, FL, or the county in which the decedent resided at the time of death (See Question 7).
• Circuit Court (acting through a Circuit Court Judge, See Question 8) for Marion County, FL, or for the county in which the decedent resided at the time of death.
• Personal Representative of the Florida probate estate (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 of the Florida probate estate (See Question 17).
• Trustee of Revocable Trust (See Question 21). [Back to Top of Page]
If you need a Florida probate attorney, please contact us toll free at 866-510-9099.
7. WHERE ARE FLORIDA PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, for Marion County, FL, or for the county where the decedent lived at the time of death. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the probate clerk for that Florida probate administration. [Back to Top of Page]
8. WHO SUPERVISES THE PROBATE ADMINISTRATION IN FLORIDA?
A Florida Circuit Court Judge, in Marion County, FL, or in the county where the probate is pending, presides over probate proceedings. The probate judge appoints the personal representative and issues "letters of administration," also referred to as "letters testamentary," or simply as "letters." This probate document shows to the world the 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 administration of the probate estate by entering written directions called "orders." [Back to Top of Page]
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 Florida probate court to be in charge of the administration of the Florida probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."
The personal representative is directed by the Florida 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 with the Flforida probate court and 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 with the Florida probate court 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 with the Florida probate court.
• Object to improper claims against the probate estate and defend suits brought on such claims in the Florida probate court.
• Pay valid claims of the Florida probate estate.
• File tax returns for the probate estate.
• Pay taxes.
• Employ necessary probate professionals to assist in the Florida probate administration.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family as provided by Florida probate law.
• Distribute assets to beneficiaries of the probate estate.
• Close probate administration. [Back to Top of Page]
If you need a probate lawyer in Florida to represent you as personal representative of a Florida probate estate, please call us toll free at 866-510-9099.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
• The personal representative for the probate estate 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 of Page]
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.
• 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 probate estate - those who will inherit the decedent's probate estate.
Do I need an attorney to handle a probate estate in Florida?
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 the probate estate proceedings before the Florida probate court. The Florida probate attorney for the personal representative is not the probate attorney for the beneficiaries of the estate.
A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as probate attorney for the personal representative is not binding on the personal representative.
If you need the assistance of a Florida probate lawyer in Ocala, Marion County, Florida, please contact The Coleman Law Firm, PLLC at 904-448-1969 or toll free at 866-510-9099, or email us at Info@TheColemanLawFirm.net. [Back to Top of Page]
13. HOW ARE ESTATE CREDITORS HANDLED?
Prior to commencement of the 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 Florida probate estate with the Clerk of the Circuit Court of Marion County, FL or where the probate estate is being administered. This claim is generally required to be filed 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 with the Florida probate court an
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 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. [Back to Top of Page]
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 probate estate and size of the probate estate:
• Final Form 1040 federal income tax return, reporting income for the decedent's final tax year.
• One or more Form 1041 federaal income tax returns for the probate estate, reporting income for the probate estate.
• Form 709 federal gift tax return(s), reporting certain gifts made by the decedent prior to death.
• Form 706 federal estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate.
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
If the decedent created a revocable 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 in Marion County, FL or where the decedent lived, giving information concerning the settlor and trustee. [Back to Top of Page]
This material represents general legal information about Florida probate law. Since Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate lawyer, trust lawyer, FL probate litigation attorney, or Fl trust litigation attorney about your legal rights and responsibilities regarding your particular case.
Florida Counties and cities in which Ocala Florida probate lawyers and attorneys offer probate services. If you need immediate assistance, please call us toll free at 1-866-510-9099.
Alachua |
Gainesville, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy |
Bay |
Panama City, Panama City, Beach, Lynn Haven, Youngstown |
Baker |
Macclenny, Glen Saint Mary |
Bradford |
Starke, Brooker, Hampton |
Brevard |
Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar |
Broward |
Ft. Lauderdale, Davie, Sunrise, Weston, Coral Springs, Pompano Beach, Hollywood, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches |
Calhoun |
Blountstown |
Charlotte |
Punta Gorda, Charlotte, Port Charlotte, Palm Island |
Citrus |
Crystal River, Homosassa Springs, Inverness |
Clay |
Orange Park, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms |
Collier |
Naples, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee |
Columbia |
Lake City, Fort White |
DeSoto |
Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt |
Dixie |
Cross City, Horseshoe Beach, Old Town |
Duval |
Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach |
Escambia |
Pensacola |
Flagler |
Palm Coast, Flagler Beach, Bunnell, Beverly Beach, Marineland |
Franklin |
Apalachicola |
Gadsden |
Quincy, Chattahoochee |
Gilchrest |
Trenton |
Glades |
Moorehaven |
Gulf |
Port St. Joe, Wewahitchka |
Hamilton |
Jasper, White Springs |
Hardee |
Wauchula |
Hendry |
Clewiston, LaBelle |
Hernando |
Brooksville, Weeki Wachi |
Highlands |
Avon Park, Sebring, Lake Placid, Leisure Lakes |
Hillsborough |
Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City |
Holmes |
Bonifay |
Indian River |
Vero Beach, Indian River Shores, Fellsmere, Sebastian |
Jackson |
Marianna |
Jefferson |
Monticello |
Lafayette |
Mayo |
Lake |
Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla |
Lee County |
Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates |
Leon |
Tallahassee |
Levy |
Bronson, Cedar Key, Chiefland, Williston, Yankeetown |
Liberty |
Bristol |
Madison |
Madison |
Manatee |
Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City |
Marion |
Ocala, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale |
Martin |
Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City |
Miami-Dade |
Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park |
Monroe |
Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier |
Nassau |
Fernandina Beach, Amelia Island, Hilliard, Yulee, Callahan |
Okaloosa |
Fort Walton Beach, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso |
Okeechobee |
Okeechobee |
Orange |
Orlando, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood |
Osceola |
Kissimmee, St. Cloud, Celebration |
Palm Beach |
Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge |
Pasco |
New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills |
Pinellas |
St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach |
Polk |
Lakeland, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven Frostproof, Polk City, Highland Park, Indian Lake Estates |
Putnam |
Palatka, Interlachen |
Santa Rosa |
Gulf Breeze, Milton |
Sarasota |
Sarasota, Longboat Key, North Port, Venice |
Seminole |
Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs |
St. Johns |
St. Augustine, St. Augustine Beach, Ponte Vedra Beach, Nocatee, Crescent City, Melrose, Pomona Park, Welaka |
St. Lucie |
Fort Pierce, Port St. Lucie |
Sumter |
Wildwood, Bushnell, The Villages |
Suwannee |
Live Oak |
Taylor |
Perry, Steinhatchee |
Union |
Lake Butler |
Volusia |
Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange |
Wakulla |
|
Walton |
DeFuniak Springs, Seaside |
Washington |
Chipley |