After you are served a notice of administration regarding a will, you have 3 months to contest the contents or validity of the will in the state of Florida. The objections to a will can be regarding the creator’s capacity at the time of signing, undue influence in the will’s signing, possible fraud, etc.
If you have questions about objecting to a will, contact one of our experienced estate planning and probate attorneys at (941) 906-1231.
After a person dies, the original copy of their will must be submitted to the court. If the original will cannot be found, the Florida Probate court requires that the contents of the will must be proven by providing the court with either: 1) two disinterested witnesses who testify to the contents of the will, or 2) a copy of the will and one disinterested witness who testifies to the contents of the will.
In some cases, courts have accepted copies of wills from the decedent’s attorney but each situation involving a lost will should be examined individually to determine the best course of action.
If you have questions about a lost will in Florida or your options with regard to probate and trust administration, contact one of our experienced probate and estate planning attorneys at (941) 906-1231.
When putting together your estate plan, consider how laws in different states or countries will apply as you pass your vacation home property to your beneficiaries. If you own real property in a state other than the state you live in at the time of your death, ancillary probate may be required to distribute this asset. Ancillary probate is a secondary probate proceeding which is initiated in addition to the regular probate proceeding which distributes your assets in the state in which you reside. Probate can be lengthy and expensive but it can also be avoided through careful estate planning. With help from an experienced attorney, you can pass your vacation homes onto your beneficiaries without having the property go through ancillary probate. To speak with an experienced estate planning attorney about probate avoidance today, contact our office at (941) 906-1231.
Ancillary probate is required when a decedent was the sole owner of property in a different state from where they lived at the time of death. If the decedent had probate assets in their home state at the time of their death, the real estate law requires that two probate proceedings occur in this case – one to distribute the decedent’s assets which originates in the state in which they lived and a separate proceeding to distribute the property originating in the state in which their property is located.
If an estate you are handling involves real property in Florida that may require ancillary probate, contact one of our attorneys experienced in handling ancillary probate at (941) 906-1231. Additionally, if you are looking to avoid ancillary probate our attorneys can help you create estate planning documents such as revocable living trusts or remainder deeds so ancillary probate will not be necessary.
A probate estate can be reopened is it is found that the probate was not settled as the decedent desired. For example, if the estate’s personal representative is found to have made purposeful mistakes in determining heirs, the people who believe they should have been considered heirs can petition to reopen the estate. Another reason for reopening the estate would be if the testator was not legally competent when they signed the will which was used to settle the estate.
If you have questions about opening or reopening an estate or about your estate planning documents and the exposure they have to being contested, contact our experienced estate planning attorneys today at (941) 906-1231.
If you have been nominated as personal representative in the will of someone who has died, you should hire an attorney to represent you throughout the probate process. Probate cases can become complicated and you want to assure that as personal representative you do not make mistakes that are costly to beneficiaries and, potentially, you. Your attorney would represent your interests and not those of the beneficiaries. In addition, the Florida Probate Rules require that the PR has legal representation, except in rare cases that are exempt from the requirement under the rules. To speak with attorneys experienced in representing personal representatives in probate court, contact the office of Bach & Jacobs, P.A. at (941) 906-1231.
Probate disputes can become time consuming and expensive processes which is why many prefer to settle outside of court through arbitration or mediation as alternatives to a full court proceeding. These processes are less formal than court proceedings and, consequently, are also more flexible. Through arbitration, both parties agree to adhere to the decision made by a third party arbitrator who usually specializes in certain types of cases. In mediation, a third party works to propose a solution which both parties will agree to. Both processes allow each side to present their personal view of the case and can lead to creative solutions compared to standard court decisions.
Out of several circumstances under which a will could be contested in Florida, the simplest is the will was not drafted using the proper formalities. For example, if a will is not witnessed as per state requirements, it can be contested and thrown out.
Other grounds for contesting a will include:
Wills must be contested very quickly, generally within 90 days of when the Personal Representative files and serves the Notice of Administration. It is also possible for other testamentary documents besides wills to be contested if the situations listed above apply.
If you have questions about whether a will can be contested or to ensure your estate planning documents will not be contested, contact our office at (941) 906-1231 to speak to an experienced probate attorney.
Certain assets by their very nature can avoid probate. Probate is not necessary to transfer certain jointly owned non-probate assets because these assets pass by operation of law. In Florida, joint ownership is available through “joint tenancy,” which works well when couples acquire real estate, vehicles, bank accounts, or other valuable property together. Additionally, “tenancy by the entirety” is available for married couples in Florida. These provide for a “right of ownership,” transferring the ownership to the surviving joint owner.
Bank accounts can be transferred without going through probate if the account is designated as “payable-on-death.” Your beneficiary has no right to this asset while you are alive as you still own and control it.
Stocks and bonds can be designated as “transfer-on-death” (also called beneficiary) form. The beneficiary named will inherit this type of account automatically at your death. Again, it is important to check this designation as assets change over time as do intended heirs.
Similar to “payable-on-death” and “transfer-on-death” accounts, “Individual Retirement Accounts” (IRAs) are distributed based on beneficiary designations upon the account-holder’s death. You should consult with a Board Certified Tax Lawyer to learn about the options available for transferring IRAs and the relevant tax implications.
As long as a life insurance policy is payable to an individual or entity other than the policy owner, life insurance policy death benefit proceeds are transferred directly to their beneficiaries.
In Florida, you can make a “revocable living trust” to manage assets during your incapacity and then to avoid probate. Trusts can be used for all assets you own including real estate, bank accounts, vehicles, IRAs, etc. A trust document names someone to take over as trustee after your incapacity or death (called a successor trustee) so that they can transfer the property controlled by the terms of the trust to the trust beneficiaries without probate court proceedings after your death. You may amend or revoke your living trust so long as you have the capacity to do so.
Trusts are always recommended to avoid ancillary probate for out-of-state real and tangible personal property owned. The standard probate avoidance techniques – revocable trusts, joint with right of survivorship ownership, life estates – will work to avoid ancillary probate as well. Steps taken with respect to real property should also include related tangible personal property, or probate may be avoided for the real property, but still required for the tangibles.
To consult with Board Certified Tax Attorney Fredric Jacobs, Esq. and an experienced estate planning attorney, contact our office at (941) 906-1231.
Probate can be necessary or appropriate in certain cases. However, these are some common disadvantages to probate. Probate in Florida can be a lengthy process which can begin as soon as a death certificate is issued or can be brought years after a death.
Because creditors are paid before beneficiaries in probate, beneficiaries usually must wait until the process of probate is over to receive their payout.
Financial costs are involved in commencing and administering a probate proceeding, including filing court fees, the fees of the Personal Representative, and the fees of the attorney administering the estate.
To consult with an experienced estate planning attorney about whether probate would be the most advantageous process by which to administer your estate, contact our office at (941) 906-1231.
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