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Probate



Probate is actually the type of court that oversees cases regarding estate administration, guardianship and trust actions; however, most people still refer to the action of administering one’s estate as probate.

When a loved one has passed, then generally a person will begin the process of administering their estate through the marshalling of the deceased’s assets. This means that the deceased’s assets need to be collected, managed and distributed. That process can vary from estate to estate based upon a variety of factors, including but not limited to, the type and value of assets, the creditors involved, and whether any pending litigation is occurring or litigation could be brought on behalf of the estate.

In addition to administration, a spouse may need assistance with claiming their fair share of a spouse’s estate if their deceased spouse has written them out of their Last Will, failed to re-write their Last Will or amend a trust after they had married, or has provided less than what a spouse is entitled to by law in the deceased spouse’s Last Will or trust. This is referred to as an elective share, and the elective share is based upon not only assets that are probated, but those that pass via a trust and in some cases, beneficiary designation. It could also encompass large gifts given to others within a year of the spouse’s death. Potential beneficiaries may also need an attorney’s assistance with a Will contest or to oversee an administration of an estate to insure their rights as a beneficiary are protected.

Administration of an estate can take on various forms, depending on the many factors, and include Disposition without Administration, Summary Administration, Formal Administration, Ancillary Administration, and Trust Administration. The Attorneys at All Life Legal are here to help guide you through the process using the most cost efficient method to administer your loved one’s estate.

Disposition without Administration

This type of proceeding can occur where the only assets left was personal property that is exempt either statutorily or by the Constitution of Florida from creditor claims, and the value of non-exempt assets does not exceed the sum of preferred funeral expenses (currently $6000) plus the medical and hospital expenses of the last 60 days of the last illness of the deceased. An attorney is not required for this proceeding, and any interested party can apply to the court.

Summary Administration

Summary administration is appropriate where the only assets of the estate are exempt property and the homestead, and the value of all other assets does not exceed $75,000; or where a decedent has been dead for more than 2 years.

If the estate qualifies for Summary Administration based on the former, then a reasonable and diligent search must be made for ascertainable creditors and the petitioner for Summary must provide a plan for payment of those creditors with the non-exempt assets that is satisfactory to the court. To insure that no creditors come forward that were not named in a Summary petition, it is wise to publish a Notice to Creditors and to serve ascertainable creditors with such notice. This limits the creditors to 90 day window to file a claim on the estate or be shut out from payment of their claim. The only way they can be paid is if they can show they were an ascertainable creditor and no Notice to Creditors was ever mailed to them. Creditors, as a general matter, are only paid to the extent that there are non-exempt assets that remain after payment of claims of higher priority (including costs of administration, funeral and last 60 days of the medical and hospital costs associated to the last illness).

If the estate qualifies for Summary based on the decedent’s death occurring more than 2 years prior to filing a Summary Administration petition, creditor claims are barred and not paid, and an order granting Summary Administration and distribution of assets can occur rather rapidly.

Depending on the venue in which a Summary will be filed, an attorney may or may not be required. The cost of Summary administration can vary from firm to firm, but is typically charged as a flat fee.

Formal Administration

Formal Administration may be required where the estate does not meet the Summary Administration requirements, or preferred where getting information on an asset or dealing with a creditor requires the nomination of a personal representative (sometimes referred to as an executor in other states). It is also necessary to continue or bring suit against another individual or entity on behalf of the deceased, such as in a personal injury case, wrongful death action or undue influence case, to name a few.

Formal Administration has more filing requirements and lasts much longer than a Summary Administration. Formal Administration, no matter what venue it is filed in the state of Florida, requires the petitioner to have an attorney of record, unless the Petitioner is the sole heir; however, a Court may request that a sole heir petitioner hire an attorney if that sole heir is not meeting the requirements of the administration process. The cost of Formal administration can vary from firm to firm. Statutorily, there is a defined reasonable fee for the ordinary services (the administrative part of the probate process) of Formal Administration based on a percentage of the value of the assets, where extraordinary services (services that go beyond the basic administrative process, some of which are defined by statute and some of which are defined by the attorney who you hire) are typically charged at an hourly rate usually agreed to by the client and the attorney up front. Although the statute lays out what is presumed to be a reasonable fee, the client may agree to a different percentage.

The person who serves as personal representative of an estate is also allowed a fee that is equal to 3% of the value of the probatable assets. And like the attorney, may charge a reasonable hourly rate for extraordinary services.

The attorneys at All Life Legal have the experience in probate to effectively guide you through the Formal Administration process.

Ancillary Administration

This administration is for estates where the deceased is a non-Florida resident, but had property located here in the state of Florida. This sort of administration runs fairly similar to a Formal Administration.

Elective Share or Pre-empted Spouse

If a decedent is survived by a spouse but did not leave anything in his revocable trust or Last Will to the spouse, the spouse may have a claim for an elective share or may be considered a pre-empted spouse.

When the deceased was married at the time that he entered into a Last Will or trust, or amended a trust that existed prior to the marriage after the marriage has occurred, the surviving spouse may want to file an elective share claim. There are specific statutory deadlines to file such an election, and it is important for a spouse to timely file the election. An elective share is equal to all non-exempt property, homestead and 30% of the elective estate. The elective estate includes all of the deceased spouse’s assets (probatable and non-probatable) that the deceased spouse had right prior to death, and includes assets that the deceased spouse had but gifted to others one year prior to death. The calculation of the elective estate requires skilled knowledge of the statutes and case law of what comprises the elective estate. Even if a prenuptial or post-nuptial agreement exists, the surviving spouse may have claims that would void the pre or post-nuptial agreement or make it voidable that would allow the surviving spouse to claim an election share.

If the deceased spouse failed to re-write or amend their Last Will or a trust that pre-existed prior to the marriage to the surviving spouse, the surviving spouse may set forth a claim that they are a pre-empted spouse and can receive what they would have received if the deceased spouse had died without a Will or trust.

In either of these cases, effective representation is a necessity to insure that all statutory requirements are being met, and that the value of their claim is calculated correctly.

Will Contests and Other Cases of Exploitation of a Vulnerable Person

Undue influence can be an issue for an elderly person who is easily influenced by a caretaker or family member. If you would once have been considered a beneficiary, and then upon the filing of a deceased person’s Last Will and Testament or trust, you find that your share has been significantly reduced or cut out entirely, you may want to look into whether the deceased was unduly influenced by the person who benefited the most from that changed Will or trust. If you are a beneficiary and upon the death of the loved one, you find that all the money has been paid over to a caretaker or family member under less than reasonable circumstances, it is possible that your loved one has been a victim of exploitation. The attorneys at All Life Legal are familiar with the claim of undue influence, exploitation, and other causes of actions meant to recover assets that should have been part of your loved one’s estate, and can assist you to uncover whether any claims exist, including tortious interference with inheritance claims.

Contact All Life Legal today for a FREE NO Obligation 30 minute consultation at 1-813-671-4300!


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