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Probate

Is an Attorney Required for Probate Administration in Florida?

By Elder Law, Estate Planning, Probate

Question:  If I am the personal representative for an estate in Florida, am I required to have an attorney for the probate administration in the Florida circuit court?

Answer:    Florida law requires an attorney in a formal probate proceeding except in the rare case where the personal representative is the sole interested person. However, Florida probate procedures are complicated and most non-lawyers will have a challenging time trying to proceed without an attorney.   Just determining who fits the statutory definition of “interested person” requires an understanding of the Florida Probate Code and the Florida Rules of Probate, which apply to even the most basic estate administration.  If you have been named the personal representative in the will of someone recently deceased and you would like assistance with the administration of the estate, contact Bach & Jacobs to meet with one of our attorneys.

December 6, 2013
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Where Can I Research the Florida Probate Law?

By Elder Law, Estate Planning, Probate

Question:     Where can I find trusted, general information on the probate process in Florida?

Answer:    One obvious source of information on probate law topics in Florida is on the Bach & Jacobs, P.A. website where you can view frequently asked questions relating to probate and the administration of estates.  Another source for a general overview of basic probate concepts is the Probate in Florida Pamphlet, available for free viewing at the The Florida Bar website. If you would like advice or assistance specific to your probate matter, contact Bach & Jacobs at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 3, 2013
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Can Lawyers Be Beneficiaries of a Client’s Estate in Florida?

By Elder Law, Estate Planning, Probate

Question:  I was appointed personal representative of an estate and I saw in the will that the lawyer who drafted it wrote himself in as a beneficiary of the estate.  That seems inappropriate.  Is that ethical?

Answer:    Unless the attorney is related to the deceased client, Florida law prohibits such a gift.  The Florida Legislature passed a law that became effective October 1, 2013 that voids a gift to a lawyer, or certain persons related to or affiliated with the lawyer if the lawyer prepared the instrument making the gift or solicited the gift.  An exception is made for the lawyer or recipient of the gift who is related to the client.  If you are the personal representative of an estate and would like assistance with the administration of the estate, contact Bach & Jacobs to have your estate planning documents reviewed by our attorneys.

November 26, 2013
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Question:   I read on the internet that I could handwrite my own will without having the formality of witnesses and that the will would be valid for probate.  Is that true?

Answer:    While you can certainly handwrite your will, in order to be valid in Florida a will must be signed in the presence of two witnesses, who must also sign the will in the presence of the testator and one another.  Some states recognize handwritten or ‘holographic wills’ and excuse the lack of other formalities, such as witnesses, but the Florida Probate Code does not.  If one tries to have a holographic will admitted to probate in Florida that did not comport with the proper formalities of will execution, the decedent’s estate will be distributed according to the laws of intestacy, not the provisions of the invalid will.  If you are concerned that your will or trust may be invalid under Florida law, contact Bach & Jacobs at (941) 906-1231 to have your estate planning documents reviewed by our attorneys.

November 22, 2013
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Can an Out-of-State Personal Representative Bring a Wrongful Death Action in Florida?

By Elder Law, Probate

Question: I am the personal representative of an estate located outside of Florida.  The deceased died in Florida in an auto accident.  However, the deceased did not reside there or own any assets in Florida.  Can an out of state personal representative bring a wrongful death action in Florida even if there is no ancillary probate proceeding in Florida?

Answer:    Yes.  There may be instances where the resident of another state dies in Florida without having any assets in Florida that would require a probate proceeding in Florida.  Under Florida law, a foreign (non-Florida) personal representative may file a wrongful death claim in Florida court if the activities that gave rise to the action occurred in Florida.  The personal representative that brings the suit does not have to be a Florida resident.  The foreign personal representative will want to retain an attorney licensed in Florida to represent them in the action.  Additionally, the out of state personal representative or executor will need to present duly authenticated letters of administration from the other state’s probate court.

November 19, 2013
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Tips for Florida Personal Representatives: How to Locate Online Assets for Probate?

By Elder Law, Probate

Question:  My husband recently died.  He was very tech savvy and handled all of our finances online.  If the court appoints me personal representative, how am I going to find all his financial assets and accounts for administration of his probate estate?

Answer:    Your situation is part of a growing trend as we move to a ‘paperless society.’  A good place to start to locate assets for the purposes of probate administration are smartphones, computers, email, and voicemail.  You can look for information about assets by looking on your husband’s computer for favorites folders and websites, bookmarked websites, browsing history, and especially any financial software.  If you need assistance with the handling of your husband’s estate, you can contact the attorneys at Bach & Jacobs.  Our team stays on the cutting edge technologically and can show you new and innovative ways to identify all assets.  You may even find that there are assets out of state that require an ancillary administration in the other state.  Contact Bach & Jacobs at (941) 906-1231 to assist you with identifying and valuing digital assets for both in-state domiciliary probate administration or ancillary administration in Florida.

November 15, 2013
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Summary Administration for an Ancillary Probate Estate

By Elder Law, Probate

Question:  I am the personal representative for someone who died out of state and is not a Florida resident.  However, the deceased owned land in Sarasota County.  Do I need to open an ancillary probate in Sarasota?  If so, does it have to be the full formal probate or can it be the expedited administration?
Answer:    Even if the decedent’s estate is administered by an out-of-state probate court, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts.  An ancillary probate in Florida may be handled in an expedited way (called a “summary probate”) or a formal probate depending on the facts of the case and the value of the assets.   Bach & Jacobs, P.A. frequently assist people with Florida ancillary probate administrations.  If the real estate is titled solely in the name of a decedent, then there is no alternative to probate to correctly transfer title upon sale or transfer to the heirs. If you need assistance with the probate of a non-Florida resident’s estate assets in Florida, contact Bach & Jacobs at (941) 906-1231.  We can review your case and let you know if summary probate or formal probate is appropriate for your particular Florida ancillary probate proceedings.

November 8, 2013
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Probate Administration When the Will is Lost

By Estate Planning, Probate

Question:  Before my father passed away, he told me he had appointed me personal representative of his estate.  I know I need to initiate a probate proceeding to administer his estate, but I can’t find his will.  What do I do?
Answer:    If someone dies without a will, the distribution of the decedent’s estate is governed by the laws of intestacy and the decedent is considered to have died “intestate.”  This should only be used when one has no known last will.  If a will was known to exist but is lost, Florida has procedures to establish a lost or destroyed will so that the estate is administered according to the deceased’s last will.  The essential elements of the procedure are to (1) submit a “correct copy” of the will; (2) provide testimony of at least one “disinterested witness” to the will signing and (3) provide evidence proving that the deceased did not intend to destroy the will.  Bach & Jacobs, P.A. has experience in complex probate matters.  If you are seeking to have a lost will admitted to probate, contact the attorneys at Bach & Jacobs at (941) 906-1231 for assistance.

November 5, 2013
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Ancillary Probate When There is No Will

By Elder Law, Estate Planning, Probate, Real Estate

Question:     What happens to real estate in Florida if the owner is an out-of-state resident who dies without a will?

Answer:    When someone dies without a will or ‘intestate’, there is no will to file with the court.  However, the real estate in Florida may have to be dealt with in Florida’s probate courts through “ancillary administration” of the estate.  Ancillary administration is usually required when the Florida real property is titled solely in the name of the decedent. First, probate must be commenced in the out-of-state county where the decedent lived, called “domiciliary proceedings.”  To commence the ancillary administration in Florida, the petition for administration and the court order appointing a personal representative in the other state will need to be filed with the Florida court where the real estate is located.  These documents from the domiciliary proceedings must also be “authenticated,” meaning  it must have a court seal from the out of state court as well as language that the document is a certified or authenticated copy of the original.  The team at Bach & Jacobs handles ancillary estate administration in Florida for non-resident estates.  Contact the firm if you need assistance with ancillary administration.

October 24, 2013
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What is an ‘Authenticated Copy of a Foreign Will?’

By Elder Law, Estate Planning, Probate

Question:     How do I know if I have an authenticated copy of a foreign will?

Answer:    Florida law allows for ancillary administration for a resident of another state that dies leaving assets in Florida.  The law requires the admission of an authenticated copy of a non-resident’s will if the will devises or bequeaths real estate in Florida.  This means that the clerk of the Florida court where  the ancillary probate is to occur must be given a copy of the will that has a court seal from the out of state court where the will was filed.  You can obtain an authenticated copy by going to the clerk’s office in the county where the will was originally filed and requesting an authenticated copy.  A quick way to confirm whether the copy of the will is ‘authenticated’ is to feel for a raised seal on the clerk’s stamp and to look for language that the document is a certified or authenticated copy of the original.  If you are the personal representative for a non-Florida resident and need assistance with an ancillary administration in Florida, call Bach & Jacobs at (941) 906-1231 to speak to an attorney.

October 16, 2013
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