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Probate
A Palm Beach County Probate Attorney from Comiter Singer Baseman & Braun Can Assist with All of Your Probate Needs
The probate process can be extraordinarily complicated, especially when you are grieving the loss of a family member, friend, or loved one. Whether you are an heir, a creditor, a personal representative, or some other interested party, navigating the probate process can be time-consuming and costly. If you are involved in a probate proceeding and need help, an experienced Palm Beach County probate attorney can help you get through the process as quickly and cost-effectively as possible.
Probate Explained by Our Palm Beach County Probate Attorneys
Probate is a judicial process for distributing a deceased person’s estate according to the terms of their will. If the deceased individual died without a will, their estate would still go through probate, but their assets will be distributed according to the laws of intestate succession, which dictates which heirs will inherit the estate’s assets. The entire process is overseen by the court to ensure that the estate is administered according to the terms of the decedent’s will or according to Florida’s intestacy laws.
A Broad Overview of the Probate Process
Generally speaking, the probate process begins with filing the will with the probate court. Once the will has been filed, the court will appoint a personal representative, and the beneficiaries and creditors will be notified. If there are any disputes involving the will or administration of the estate, those matters will be resolved through probate court litigation. Eventually, the personal representative will pay any taxes and other valid claims, distribute the estate assets, and then make a final accounting to the court. While this may sound simple, it is actually a very complicated process that can take several months to complete. A Palm Beach County probate lawyer help you ensure that the estate is administered as quickly and as fairly as possible. In fact, under Florida law, where an estate has more than one beneficiary, the personal representative must be represented by a probate lawyer.
The Different Types of Probate Proceedings
There are three types of probate proceedings under Florida law:
- Formal administration: This is the most common type of probate and is the most involved. If the decedent’s estate is worth more than $75,000, you must go through the formal administration probate process, if the decedent passed away within the last two years. The process takes place in the Circuit Court of the County where the decedent was domiciled (i.e. resided) when they died.
- Summary administration: This is a less formal probate process that allows the estate to be administered on an expedited basis. It is available in situations where the decedent died more than two years ago or the estate’s value is less than $75,000.
- Disposition without administration: This option allows you to avoid probate altogether but is available in only very limited circumstances, namely if the decedent did not own any real estate and the value of their estate is less than the costs of the proceeding.
Determining which process you need to follow is not always easy, and you will have to file some paperwork with the court no matter which approach you use. A Palm Beach County probate attorney can provide you with the guidance you need.
Is Probate Required in Florida?
In Florida, probate is required when someone passes away, with limited exceptions:
- If the estate was in a living trust, or
- If all assets were successfully transferred to a listed beneficiary.
If the deceased person was the sole owner of the assets or if the person was a co-owner with no legal provisions for transfer to the other owners at death, the estate will go through probate.
Can I Avoid Probate in Florida?
Yes, it is possible to avoid probate. One way is to set up a living trust with all the assets of the estate included. The trust beneficiaries automatically receive the assets of the trust when the person dies. Another way is to name a beneficiary for as many assets as possible. For example, life insurance policies and retirement accounts have named beneficiaries who will automatically receive these assets after the owner dies.
Probate Court Disputes
If every party or interested person to a given probate does what they are supposed to do when they are supposed to do it, and the deceased person has correctly and comprehensively laid out his or her wishes, everything runs smoothly. Most probate proceedings move along in just this way. However, probate does not always work this way. The process becomes more complicated when someone dies without a will, or if there is a legal dispute such as a challenge to a trust or a contested will.
In Florida, it is permitted for a will to be contested on the grounds of validity; in other words, the will was not executed properly. Wills may also be challenged when the person creating or changing the will lacks the requisite legal mental capacity to understand the will documents, the consequences of the contents of the will, and the ramifications any changes may have.
Summarized, the most common will disputes include:
- The absence of the required mental state, as discussed above, is a common source of disputes. The person signing the will should be sure to include a clause stating that he or she was of sound mind. The absence of such a clause may cause disputes as to the signer’s capacity.
- Improper witness signature. The proper number of witnesses, usually two, must sign a traditional typed will in the presence of the testator and in the presence of each other. Lack of proper witnessing can lead to disputes.
- Lack of date. A date is needed to determine how old the will is, especially If there are other allegedly valid wills presented to the probate court. Conflicting will versions is a common source of disputes.
- Failure to provide intent of will. The will must state what it is and its purpose.
- Lack of specificity. Like standard contracts, the will should be specific as to terms and conditions. The more specific the will is, the less there is to cause disputes.
Like a will, in Florida, a trust may also be challenged in court. Legal disputes over trusts commonly include undue influence over the settlor, lack of mental capacity by the settlor, improper witnessing and/or execution, and a multitude of other reasons, including:
- Failure to Fund. A trust must be funded by transferring ownership of your assets from your name to the name of the trust. Failure to fund a trust renders it void.
- Failing to Put Your Trust in Writing. Any trust that involves real property must be in writing.
- Failure to Show Intent. To be valid, your trust document must show a clear intention to create a trust. An intention to create a gift, for example, is not sufficient to create a valid trust.
- Failing to Name a Beneficiary. A trust is essentially an agreement between a grantor and a trustee for the benefit of at least one beneficiary. Without at least one beneficiary, there can be no viable trust agreement.
Why You Need a Palm Beach County Probate Attorney
You are not required to hire a lawyer to be involved in a probate proceeding. Unfortunately, many people choose not to hire a lawyer because they misunderstand the roles that the different parties play. For example, many people assume that the personal representative will protect their interests. While the personal representative has a fiduciary duty to act in the beneficiaries’ best interests, they cannot put one beneficiary’s interests ahead of another. When disputes arise, it can be challenging for the personal representative to determine the proper course of action.
Similarly, people often think that the probate court will protect their interests. First, it is important to understand that the court cannot give any of the parties legal advice. Second, the court’s role is to ensure that the estate is administered according to the terms of the will and in compliance with Florida law. They will preside over any disputes that occur, but their role is to remain neutral and impartial.
Consultation with a Palm Beach County probate attorney can greatly assist you in navigating the potential pitfalls of serving as the fiduciary of an estate and handling the administration of said estate.
How Much Does a Personal Representative’s Attorney Get Paid in Florida?
Florida law lays out attorneys’ fees for a Florida and Palm Beach County probate attorney based on the size of the estate:
- The fee is $1500 for the first $40,000.
- The fee is $2250 from $40,000 to $70,000.
- The fee is $3000 from $70,000 to 100,000.
- The fee is $3000 plus three percent of the estate value over $100,000 from that $100,000 to $1 million.
- The fee is $3000 plus 2.5 percent over $1 million for the next $2 million.
- The fee is $3000 plus two percent over $3 million If the estate is between $3 and $5 million.
- The fee is $3000 plus 1.5 percent of the value over $5 million from $5 to $10 million.
- Estates worth $10 million and above would pay at $3000 plus one percent of value over $10 million.
This fee schedule is for the typical work done by an attorney on an estate. If the will is contested or disputes and complications arise, attorneys may charge a higher amount for the extraordinary time and efforts.
Frequently Asked Questions Regarding Probate in Florida
How long does the probate process take?
Formal administration typically takes 12 to 15 months to complete. Summary administration can take less than a month. However, the probate process can take longer if disputes or other difficulties arise.
The will was drafted and executed in another state. Is it valid in Florida?
Generally speaking, Florida probate courts will recognize a will as valid if it is valid under the laws of the state where it was drafted. However, Florida will not recognize as valid any will that is oral or entirely handwritten. In those cases, the decedent’s estate will be distributed according to Florida's intestate succession laws.
Who may serve as a personal representative during probate?
Florida law requires that personal representatives must meet the following requirements:
- They are a resident of Florida or related to the decedent by blood, marriage, or adoption
- They have never been convicted of a felony
- They are at least 18 years old
- They are mentally and physically capable of serving as the personal representative
The will contains a “no contest” clause. Does this mean that I cannot challenge the will?
“No contest” clauses are unenforceable in the state of Florida. They are often inserted as an attempt to discourage interested parties from challenging the will.
I have been named as the personal representative, but I am worried about making a mistake. Can a probate lawyer help me?
Serving as the personal representative of a decedent’s estate is a big responsibility and often requires considerable knowledge about financial matters. For this reason, many personal representatives will hire an estate administration attorney to assist them in administering the estate.
Contact Comiter, Singer, Baseman & Braun & Schedule a Meeting with an Experienced Palm Beach County Probate Attorney
We are an award-winning Palm Beach County Law Firm with deep experience in navigating the probate process. From simple disputes to complex problems, we make sure our clients’ interests are protected and the decedent’s intentions are honored. To schedule an appointment, contact us at 800-226-1484 to discuss your needs and how we can help.
