The rules of homestead in Florida are complicated. But heirs may have more rights than you realize. You may end up inheriting homestead which is valuable. Don’t worry if you don’t get along with your family co-owners. You can sell the property even if others disagree. File a partition action. Your rights If you inherit part of your mom’s house, and you don’t want to live there, sell it ! And take your inheritance from the sale proceeds. How? Read on…. Any part of a decedent’s estate that does NOT pass by a will, passes according to the laws of intestacy. Intestacy means that someone died without a will. Under the intestacy laws, heirs inherit. Who are heirs? Heirs are those who inherit under the laws of intestacy. Sound circular? Heirs include descendants and the surviving spouse. If there is no surviving spouse, then the descendants inherit. What about homestead? It has its own rules and laws. Inheriting homestead — the “ugly” (confusing) truth Homestead is the one true house of the dead Floridian. You know, that place where she always returned after being away. Sometimes, a Florida resident has multiple residences. But only one homestead. You can inherit by selling it, even if your co-owners don’t want to sell it. And even if they are living in it. So, you can file a petition to determine homestead. Homestead is generally considered OUTSIDE OF PROBATE. And not a probate asset. (Click HERE for commentary about the probate process). Although you […]

Do you know how to make your Florida estate claim? Filing the proper paperwork is crucial. You need to know the difference between filing objections and a creditor’s claim. Florida Estate Claim — the basics When you have a probate, the “executor” or personal representative will “run” or administer the estate. This involves gathering assets, paying the decedent’s last expenses, dealing with the will and beneficiaries, and creditors. There’s a difference between objecting to a will and filing a creditor’s claim. If you are an “interested person” in the Florida probate, you can object to an improper or incomplete accounting, or inventory or petition. Heck, you can even object to a will. You can also object to who is the executor. Yes, you can even object to a creditor’s claim. What is a creditor’s claim? What is a Creditor’s Claim? A creditor’s claim is a statement, or a claim, by someone who is owed something. From the dead person. It might be money. The most common example of this is. The dead person borrowed money from me and I want to get paid back. Or, you could have rights which you want to exercise. Such as rights under a contract, a prenuptial agreement, or an operating agreement for an LLC. Get in the Game There is a whole process to correctly filing your objection or estate claim and getting what you want. A creditor’s claim has an entirely unique process with very short time frames. Not all creditors are created […]

Why do family members fight over the Florida safe deposit box? Here’s 10 things to know about this asset in a Florida probate. (For information about an estate inventory, click HERE.) Finding Treasure? First of all, LOTS of Floridians have a safe deposit box. Yes, even in this day and age of digital currency and home safes. Sometimes they store jewelry, important documents, family heirlooms and other valuables. And………….many times there’s nothing of value there. But, how do you know unless it’s inspected and accounted for? Probate lawyers often deal with safe deposit boxes. Some family members are convinced that mom or dad had gold bars or millions in there. Always read the will first. And see if there are any “memo’s” which dispose of tangible personal property. Note: that memo may NOT deal with the box if they box is a “will substitute” and passes outside of probate. Florida Probates + Safe Deposit Box Second, there is a statute, or law, found in the Florida Probate Code. Section 733.6065 deals with opening them. Third, there’s a whole procedure that should be followed. 4th, you should have witnesses. 5th: (recommended), video tape the opening and contents. 6th, it’s best to get bank employees or dis-interested witnesses to watch this. 7th, the contents should be on the official estate inventory. If they are not, make sure that the personal representative (estate executor) files an amended inventory. 8th, if you suspect foul play, file a motion or a petition. 9th, look for […]

A probate inventory in Florida is not only required. It’s important. Here are 10 things which you need to know if you are a beneficiary, family member, “inheritor” or personal representative. Who knows, maybe you inherit more than meets the eye. What do I need to know? If you are a beneficiary or an “interested person” in a Florida probate, you WANT to know what’s in the estate. (For more on what an interested person is, click that link, or here.) The most common or “easiest” way to do this is to read the probate inventory. The executor or personal representative is required by law to provide an inventory. In fact, she must “verify” it. This means that what she files is based upon her best knowledge. She swears to it. If there is anything missing, or mis-leading, file your objections. Probate Inventory First, an inventory is required by law. See 733.604 of the Probate Code Second, it has to contain a description of property and a value as of the date of death. That means that you don’t have to list every single item of clothing or furniture, but you have to give the reader some idea of what’s there. Third, you can supplement, improve or amend the inventory. This is done when you want to correct something or if new assets are found. Fourth, the inventory is confidential. That means that you won’t see it online when you do a case search at the clerk’s website. You have […]

Where’s your money? Who’s got your inheritance & what happened to all the property? You need an estate accounting. For a Free Florida Accounting Legal Video on this topic, click that link. Otherwise, keep reading to learn more about your rights and what you can do to claim your inheritance. Where’s the money? “They are not telling me anything about my parent’s estate!” Do you know how many family members complain about the probate process? Many times, adult children are entitled to inherit a big part of the estate. But, there’s no information. Someone is either not communicating something, or maybe hiding something. While this discussion is not about probate fraud, you should know what your rights are and how to exercise them. After all, it’s YOUR inheritance, right? The truth is that you don’t have to wait. Either to get information or to start the probate process. If your family member died, you can “open a probate” and find the assets. You don’t have to wait for others to act. Even if there is a will naming someone else as “executor.” Many times, the person named to run the estate sits on their hands. They don’t file the will nor open probate. That’s not fair to beneficiaries or family members. So,……open probate yourself. But, follow the rules ! You have to give notice to certain people. Whether there is a will or not. (If there’s no will, heirs inherit under an “intestate” estate). There is a straightforward procedure for […]

Where’s the money? Lots of family members, heirs and beneficiaries want to know more about the estate inventory in Florida probates. Here’s all you need to know in 1 minute and 55 seconds. (For more about this topic, you can click HERE to read free Florida probate commentary with no sign-up.) What’s in the Florida estate? Everyone wants to know “where’s the money?! ” Well, if a Florida probate is opened up, the Personal Representative is required to file an estate inventory. Florida Probate Rule 5.340 requires that an inventory be filed. When? Within 60 days of the court issuing “letters of administration.” (Letters is actually a single court document signed by a judge that gives the executor, or Personal Representative, the power to act.) Amendments, and updates to a Florida estate inventory are expected. Getting what’s yours So, what do you do if no inventory was filed? You file a motion with the probate judge. What does the motion say? It asks the judge to compel the executor to file an inventory forthwith. (see below, too) What do I do if there are missing assets? “You need to do two things” says probate litigation attorney John Pankauski. “File a motion to compel or file a Petition for Return of Probate Assets.” To read more about Florida probate inventories, you can read two things. Florida Probate Code statute 733.604. This will give you a quick introduction to this topic. This is the law, or statute, on inventories. Next, you can […]

What is a power of appointment Florida and do trust beneficiaries ALWAYS get an accounting? A 2021 case from Florida, and one statute, tell us more. What is a power of appointment? A power of appointment is a right, or authority, or a power, to give someone property. Usually trust property — what’s in the trust To appoint the property to another. Or estate probate like in a probate, under a will. This also means that–and this is IMPORTANT– the “holder” of the power can NOT give you property. Yup! These powers are typically “flexible” in the sense that you can give property among a few beneficiaries or a class of family members. Just who can inherit or who “gets” the power is up to the person whose property it is. Like a wealthy grandmother who creates a trust. Or a successful corporate executive mother who dies with a will. Most common example What’s the most common example of a power of appointment? Let’s say that mom leaves a trust that benefits your sister for her life At your sister’s death, the trust says: “Upon [sister’s] death, Sister has the power to appoint the trust to her siblings or issue.” That means that Sister can “give” the trust to her descendants or to you (or other siblings.) How to read the trust + what to look for Here is a laundry list of these that you will want to know: Who created the trust? Who created the power? Who holds […]

Marital Trusts were once set up to provide for a spouse and their children. But times have changed. Find out why these trusts are often the subject of serious, and expensive, litigation. The full time employment act for probate litigators? We have previously written about trust lawsuits among a widow, or surviving spouse, and adult children. Now, let’s re-examine this Florida Legal Concept and consider why there is so much litigation — and what you can do. How Did We Get Here? OK, here’s the scenario which we are talking about. Mom or Dad have a few bucks and die. Their estate plan leaves money and property in a trust. For her or his surviving spouse for lifetime. If there’s anything left in the trust when spouse dies, it goes to Mom or Dad’s adult children. Back in the 80’s and 90’s, you could only leave about $600,000 free of the estate tax. Everything over that was taxed. The tax act of 1986 changed all that with the marital trust. If done properly, this type of trust would benefit your spouse and then go to the kids. You got a marital deduction and paid the tax when the 2nd spouse died. Sounded good , right? Fast forward to the 2000’s and 2020’s in Florida. Lots of people get divorced Many re-marry. Many 2nd spouses, or 3rd spouses, don’t like their new spouse’s children. And vice versa. So, why is everyone still creating a marital trust for people who don’t get […]

What do you have to sign to start probating an estate or will? Or, simply to have an experienced probate lawyer in your corner? Well, I guess that depends. Let’s discuss what a probate engagement letter in Florida is, what it looks like, and why you may need one. Or not ! Whether you are a beneficiary of a multi-million estate ,or a Personal Representative of a small estate, read on. Starting the Probate Process Why do you even need a probate? Can’t you just get your inheritance automatically? Well, in Florida, when a person dies, there are tricky and unique laws. About how money or property “goes,” or “passes,” to loved ones, family members and beneficiaries. How the decedent’s debts get paid —- or don’t get paid. There’s a special order to how all creditors get paid. Creditors have to jump through certain legal “hoops.” And not all creditors are created equally! (Don’t blame me, that’s the way the legislature wanted it in their Florida Probate Creditor Laws). You see, loved ones and beneficiaries don’t automatically inherit an estate. There are rules. And procedures to follow. To the shock of many estate beneficiaries and family members……………beneficiaries get paid last! After the probate lawyers, after creditors and after the Florida Executor. Many times, to follow the rules (the law) and to get it right, you need a Formal Administration. OK……………so what’s that got to do with a probate engagement letter? Why Probate Engagement Letters Matter Whether or not you are […]

Where did running the estate all go wrong? A Florida personal representative is the executor of an estate. When one dies, there are special rules for dealing with property and money. And “who gets what.” Why? ‘Cause that’s what the law says! Running probate is serious business. Think of it like a little business but with a lot more duties on the part of the executor. Here’s what you need to know about being one. (To read about estate beneficiary rights in Florida, CLICK HERE.) How do I run a probate? Handling a probate requires a number of things. Here’s a quick list. A personal representative in Florida is called an “executor” or “estate executor” elsewhere. Your job is that of a fiduciary. Like a trustee. You need to help your beneficiaries and acknowledge proper creditors of the estate. Generally, you gather assets of the deceased Florida resident. You pay off her just debts. File proper court documents, pay the final income taxes, disclose relevant information. Pay your service providers and expenses of administration. Distribute the money to your beneficiaries (that’s right! While beneficiaries of Florida estates have lots of rights, they get paid last.) Close the estate. Sounds easy, right? (To read more about estate administration, you can read the Florida Statutes). It can be with the right team in place like good appraisers, lawyers and accountants. Click here to read the FLORIDA PROBATE RULES Transparency + Disclosure — no hiding the ball or running the estate in secret […]