When a divorce is finalized, a former spouse’s right to an inheritance through Florida’s intestacy laws ends. This means that if a spouse dies without a will and their estate goes through probate, the surviving ex-spouse would have no right to an inheritance if a divorce had been finalized prior to the death. However, if a divorce is still in progress but not finalized at the time of death, the surviving spouse has full rights to their inheritance as defined by Florida’s intestate succession rules.
If someone in Florida dies without a will, their estate is distributed to living relatives following intestate succession laws. In the rare case that someone dies without any relatives including great aunts and uncles, cousins of any degree, or nieces or nephews, their estate would escheat, or be passed to, the state.
Some common questions about Florida’s intestate succession rules regard how certain relatives are treated in the process. Half-relatives, such as half brothers or sisters, are entitled to inheritances as if they were “full” relatives.
If you have further questions about the probate process, intestate succession, or setting up estate planning documents to avoid probate, contact one of our experienced estate planning or probate attorneys at (941) 906-1231.
If someone in Florida dies without a will, most of their assets are subject to the state’s “intestate succession” laws which determine who the beneficiaries will be. Some exceptions are “non-probate” assets such as properties placed in a living trust, life insurance policies, IRAs, retirement accounts, and payable on death accounts which will immediately be passed upon death to the co-owner or a previously designated beneficiary, regardless of whether the decedent had a will. The rest of the decedent’s assets will be passed under the laws of intestacy to their surviving spouse, decedents, parents, or siblings depending on the members of their surviving family. For example, if someone leaves behind a spouse and descendants from only the deceased person and their spouse, the spouse would receive their entire estate. However, if someone leaves behind a spouse and descendants from a prior marriage to someone else, the spouse and descendants would each inherit ½ of the estate.
If someone you love has recently passed away and you need guidance on what to do next or who will inherit the estate, contact our office at (941) 906-1231 to speak to one of our attorneys.
If assets are discovered after a probate proceeding has ended, it may be possible to reopen the estate through a motion and possibly a hearing. When thinking about reopening an estate, you should first consult with an experienced probate attorney who will be able to determine whether the personal representative still has authority to act. This would depend on the amount of time which has passed since the probate’s closing and applicable state laws. The fee for reopening a closed estate is around $50 in Sarasota County. For more information about reopening a probate estate, see the attached fact sheet from the Sarasota Clerk of the Circuit Court’s website.
If you have further questions about a probate proceeding or want to reopen a probate estate, contact one of our qualified probate attorneys at (941) 906-1231.
Wills must be filed with the Clerk of the Circuit Court within ten days of a death under the Florida Probate Code. There is no fee for filing a will. The Sarasota Clerk of the Circuit Court office is in the Probate Department at 2000 Main Street, Room 102, Sarasota and the Venice Branch is in the R.L. Anderson Administration Building at 4000 South Tamiami Trail on the second floor.
If you are going through the probate process, you will need an experienced probate attorney to represent your interests. Call our office at (941) 906-1231 for an initial consultation.
During a probate administration, a Notice to Creditors must be published and creditors must be given 90 days to submit claims against an estate. If there are known creditors for an estate, they must be notified directly by the personal representative to avoid the creditor being granted an extension to file after the 90 day standard period. If you are trying to avoid probate or need legal assistance during a probate or ancillary probate administration, contact one of our experienced probate attorneys at (941) 906-1231.
Executors are tasked with locating the heirs identified in estate planning documents but this can often prove difficult and, sometimes, an heir cannot be located. When this happens, Florida Probate Code directs PRs to determine the worth of the unclaimed assets and, depending on their value, deposit the proceeds with the clerk who will publish a notice to attempt to locate the heir. If a missing heir finds out that they were to inherit assets, even after their sale, they can contact the Chief Financial Officer and obtain the proceeds from the assets within 10 years of the date of their deposit.
If you are the personal representative or trustee of an estate, you have certain fiduciary obligations regarding the investment and use of the probate or trust assets. You should be careful to keep all statements from the estate account and records of activity. The attorneys at Bach & Jacobs, P.A. can advise you on the prudent investor rule and your responsibilities as a fiduciary to protect against liability. If you are the designated TTEE or PR for an estate, contact Bach & Jacobs, P.A. at (941) 906-1231 for a consultation.
No, a testamentary trust is usually created by a person’s will and has assets transferred to it during the probate process. These assets are then distributed by the trustee according to the terms of the trust. One advantage to a testamentary trust is that its administration would be carefully overseen by the courts. However, this type of trust does not avoid the process of probate which can be costly in terms of time and money. For advice on what kind of estate planning documents would best serve your individual needs, contact one of our experienced estate planning attorneys at (941) 906-1231.
If your spouse passes away and you owned real property with your spouse as tenant by the entirety, you need to clear the title to your real estate so it is owned by you alone as the surviving spouse through the following steps.
- Record a copy of the death certificate with the Clerk of Court in the county where the property is located.
- File an “Affidavit of Continuous Marriage” with the County Clerk. This form proves that your marriage was valid through your spouse’s death.
- File an “Affidavit of No Florida Estate Tax” (or DR-312 form). A copy of this form is linked below.
Affidavit of No Florida Estate Tax
Following these steps to clear the title to your property will ensure that there are no delays when you later wish to sell the property.
Bach & Jacobs, P.A. assists clients with the transfer of jointly owned real property after a joint owner dies and can prepare the necessary Affidavits and guide you through the process to properly transfer the title.
