You are named the personal representative (or executor in other states) and a loved one or family member has just died. No doubt these are difficult times, but thankfully there are many resources for help. The following is a checklist of initial important tasks to help guide you after the funeral or memorial service.

Note: You are not required to accept the Personal Representative duties. Before you can legally act on behalf of the estate you will likely need to secure Letters of Administration issued by a Florida probate court that officially designate you as the legal authority in charge of the estate. Therefore, you should not take action as Personal Representative before you know your duties and what potential claims you may face from estate beneficiaries and creditors. Consult a Miami probate attorney and see our 10 Basic Legal Rights for Beneficiaries Under a Florida Will.

First Priority Action Items

____ 1. Take possession of all legal records including:

__ Original will and all amendments or codicils

Note: If decedent did not leave a will, the beneficiaries will be determined according to Florida intestate law. See Dying Without A Will In Florida.

__ Tangible Personal Property Memorandum or writing indicating instructions for distribution of tangible personal property (such as jewelry, furniture, cars)

____ 2. Take possession of all financial records such as:

__ Inventory of assets if available

__ Passwords to computer, internet media, or social media

__ Checkbooks

__ Credit cards

__ Statements from all banks, financial companies, or financial advisors

Click here for the complete checklist: Florida Personal Representative Checklist

This is a short list of initial action items for a person who accepts the duties as Personal Representative. It is not a complete list of tasks. The Personal Representative will only be able to determine all tasks after carefully reviewing the will, if there is one, with a Miami probate attorney. Attorneys at Rarick Trusts & Wills Law have helped many family members navigate the bureaucratic Florida Probate process as the Personal Representative. We are available to help you. Contact us at (305) 709-2858 or email to info@raricklaw.com.

Special Note:

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult a Miami probate attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami probate attorney does not create an attorney-client relationship and the legal privileges inherent therein.

In our office we have numerous checklists, but one of the most important is the following checklist of nine critical deadlines for Florida probate actions:

1. Deposit Original Will with court: Within 10 days of notice of death by whomever has custody of the Will. F.S. 732.901.
2. Challenging Validity of Will or Personal Representative: Beneficiary has 90 days from receipt of Notice of Administration. F.S. 733.212(3).
3. Filing Probate Inventory: 60 days after issuance of Letters of Administration. Fla. Prob. R. 5.340.
4. Creditor Deadline For Filing Claim Against Estate: On or before the later of the date of three months after the first date of publication or thirty days after service of Notice Of Creditors for known creditors. F.S. 733.702(1). If the date of death is more than 2 years, no publication or service of the Notice Of Creditors is required and all claims are barred.
5. Personal Representative Deadline for Objecting to a Claim: Within the later of four months from first publication of the notice of creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). If the PR fails to object within this time period, the claim is deemed allowed.
6. Statute Of Limitations For Claims Against Estates: Two years from date of death, with some exceptions. F.S. 733.710.
7. Surviving Spouse Homestead Election: 6 months from decedent’s death to opt out of life estate in homestead and take 50% interest.
8. Elective Share of Decedent Spouse: As early as 6 months from the date of service of a Notice of Administration on the surviving spouse, or 2 years after decedent’s death if no notice provided. F.S. 732.201-732.2155.
9. Determination of Exempt Property: 4 months after the date of service of a Notice of Administration or 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of exempt property. F.S. 732.402(6).

For more information contact Phil Rarick, Miramar probate attorney, with Rarick Trusts & Wills Law, P.A. at (305) 709-2858 or info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miramar probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

The person in charge of making sure the property distributions in the Will are satisfied according to the instructions of the decedent is called a “Personal Representative” (referred to in other states as an “Executor”). The Personal Representative (or “PR”) has numerous fiduciary duties that run like a laser beam to the beneficiary. Here are some of the most important:

1. You have a right to secure a true copy of the Will. The original will must be deposited with the court within 10 days of notice of death by whomever has custody of it. F.S. 732.901

If you receive a Notice of Administration from the Personal Representative, it is strongly advisable to immediately request a copy of the Will from the PR.

Note: If the decedent did not have a will, your rights are determined – and protected – according to Florida intestate law. See a Miami probate attorney to help determine your rights and visit our previous article Dying Without a Will in Florida: Who Gets What? for more information.

2. You have a right to receive a Notice of Administration from the Personal Representative that will provide valuable information but will also establish a deadline as to when you can object to the Will. See #3 below. F.S. 733.212

3. If you believe the Will is not the true last will of the decedent, was executed when the decedent lacked capacity to understand what he or she was signing, or was secured as a result of undue influence, you have a right to contest the validity of the Will offered to probate.

Note: If you receive a Notice of Administration, your deadline for challenging the Will is 90 days after receiving said Notice. F.S. 733.212(3)

4. You have a right to see the inventory of the estate. The inventory must be filed within 60 days after the Personal Representative is appointed by the court and receives his or her Letters of Administration. F.S. 733.604??

5. You have the right to receive a detailed accounting filed by the Personal Representative pursuant to F.P.R. 5.345. If the PR has not filed an accounting, you have a right to compel the PR to do so. F.P. R. 5.150 Lastly, you can object to an inventory or accounting filed by the PR.

6. You have the right to Petition for the removal of the Personal Representative. F.S. 733.506.

7. You have the right to petition for an interim distribution. F.P.R. 5.380; F.S. 733.612(26)

8. You have the right to receive an inventory of safe deposit box F.P.R. 5.342

9. You have the right to petition for determination of homestead status of real property. F.P.R. 5.045. Such a petition is often advisable to shield the decedent’s primary residence from claims of creditors.

10. You have the right to petition for a decrease in the Personal Representative’s compensation. F.S. 733.617

This Report is only a summary of the key rights a beneficiary possesses under a Florida Will. It is not a complete list of rights. For more information, contact Phil Rarick, Miami probate attorney, at (305) 709-2858 or info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

These fees are not the total cost of probate: they do not include the Personal Representative’s fee, which are often paid to a family member or waived. If not waived, the Personal Representative’s fees can be up to 3% of the total probate estate.

Probate takes time – usually 9 months to 2 years. During this time, your assets will be frozen (unless you wish to incur the expense of a bond) so an accurate inventory can be taken, and nothing can be distributed or sold without the court and/or personal representative’s approval.

Loss of Privacy. Probate is a public process. An “interested party” can find out details about your estate, including who the heirs are, what they will receive, their addresses, etc. This information is sometimes used as “business” leads by solicitors.

Loss of Control and Intervention of the Courts in your Family Affairs. The probate judge— not you or your family—has supervision over how your Will is interpreted, how much probate will cost, how long it will take, and what information is made public. Families are accustomed to handling their affairs privately and independently. Suddenly, losing that control to a legal process and having to pay for it can be frustrating.

Wills Cannot Plan for Disability. This is the most serious, yet least understood limitation of Wills. Disability is the lack of capacity to manage your own affairs. Think about this for a few moments. If you can’t handle your affairs because of mental or physical incapacity – for example, if you have a stroke or a heart attack, develop Alzheimer’s Disease, or are injured in an auto accident—who will conduct business for you? Sooner or later, your signature will probably be required for something—to withdraw savings, sell/ refinance assets to pay your expenses, etc. Unless you have legally given another person the legal authority to sign for you, you will not be able to transfer these assets without the intervention of the probate court.

For information about how to avoid probate click here: How To Avoid Probate?

For more information about Florida Probate click here: Florida Probate Quick Reference Guide.

Disclaimer

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida estate planning law. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Florida probate attorney fees depend on whether the proceeding is Summary Administration – usually the quickest and least expensive – or Formal Administration. Many factors will enter into the fees, including whether the probate is contested, is subject to estate and other taxes, involves the sale of real estate, and requires advice regarding homestead.

It is now common for the decedent to have both a will and revocable living trust. Such cases may require probate of the will and administration of the trust.

Our office provides a complimentary probate/trust review. Call us at (305) 709-2858 or email attorney Phil Rarick at prarick@raricklaw.com and we will give you a Checklist of Documents we need for the review as well as a Checklist Of Tasks for the Personal Representative (known as executor in other states). Upon review, we can give you a good faith estimate of the attorney fees provided the estate is not contested and all beneficiaries cooperate.

II. Summary Administration

Summary administration may be used for either a resident or non-resident decedent’s estate if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2)

Note: The “value” is the gross as opposed to the net value of the estate. The decedent’s homestead is not considered part of the gross estate. Therefore, Summary Administration is available if the only asset in the estate is the homestead regardless of value.

Attorney’s Fees for Summary Administration: Summary Administrations are usually charged at the attorney’s hourly rate. After reviewing the will (if there is one), inventory, and death certificate, we can give you an estimate of our fees.

III. Formal Administration

This administration must be used if the decedent’s estate does not qualify for summary administration: the decedent’s estate exceeds $75,000, or the decedent has been dead for less than two years, or the will requires formal administration. Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims.

Attorney’s Fees for Florida Probate Formal Administration: Florida law sets forth a presumptive statutory fee schedule for probate attorney fees as follows:

– $100,000-$1 million: 3% – $1 million-$3 million: 2.5% – $3 million-$5 million: 2%

Additional fees may be charged at an hourly rate for extraordinary services, such as will contest, sale of real estate, preparation of a Federal estate tax return, etc. See F.S. 733.6171.

Personal Representative’s Fees for Formal Administration: The Personal Representative (“PR”), the person legally in charge of the estate, is also entitled to fees for his or her services. The fee rates for the PR are similar to the attorney rates. See F.S. 733.617. IV. Conclusion Rarick Trusts & Wills Law has been entrusted by over 400 law firms and many individuals during the past 18 years to probate small to complex estates and administer trusts. After the loss of a loved one, we endeavor to help you close the estate in the least stressful way. For a complimentary consultation, call attorney Phil Rarick at (305) 709-2858.

Probate is the legal process for transferring assets owned by decedent according to the decedent’s will or Florida intestate law to his or her beneficiaries after all legitimate creditors of the estate have been paid. The Personal Representative (in other states this role is called the “Executor”) is the person appointed by a will to follow the instructions of the will and administer the estate in strict compliance with Florida law. If there is no will, the Personal Representative is the person authorized to administer the estate under Florida law.

This guide discusses:

• The three types of Florida proceedings
• The time frames and attorney fees connected to each proceeding
• Six Critical Deadlines
• Ancillary Probate for non-Florida decedents who own Florida property
• Homestead: the most confusing issue for many; we will help clarify

Note: You need a Florida Attorney: In Florida, every personal representative, unless the personal representative remains the sole interested person, must be represented by an attorney admitted to practice in Florida. Fla. Prob. R. 5.030 (a). This is a short summary, not a full review of the law. This guide is designed to address some of the most common questions asked about Florida probate. Questions specific to an estate should be addressed to an experienced Miami probate attorney. Although located in Miami Lakes, our firm can usually represent you in any Florida county if the probate is uncontested. A. Three Types of Proceedings Florida has three types of proceedings to transfer title of a decedent’s assets. 1. No Probate: Disposition Without Administration When Available: This procedure can only be used for very small estates – less than the funeral bill or maximum of $6,000 in some counties. This process allows someone who paid for the person’s final expenses – the funeral and expenses of the last illness – to be reimbursed from the assets of the estate. Fla. Stat. 735.301 It can be used only when the deceased person did not leave any real estate, and the only assets are either exempt from creditors’ claims or do not exceed the amount of final expenses. 2. Summary Administration When Available: Summary administration may be used for either a resident or non-resident decedent’s estate if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2) Note: The “value” is the gross as opposed to the net value of the estate. The value of the homestead is not included in the gross value. Time Frame: 3-6 months for simple, uncontested administrations in most counties. However, the time frame can vary according to the Florida county. Attorney’s Fees: Summary Administrations are usually charged at the attorney’s hourly rate. After reviewing the will (if there is one), inventory, and death certificate, our Firm can give you a reasonable estimate of our fees. More information: See Fast Track Florida Probate 3. Formal Administration When Required: This administration must be used if the decedent’s estate does not qualify for summary administration because the decedent’s estate exceeds $75,000 or the decedent has been dead for less than two years. Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims. Time Frame: 6-9 months if simple and not contested for most counties. However, the time frame can vary according to the Florida county. More complex estates range from 9 months to 1 year or more. If a Federal estate tax return (Form 706) is required additional time may be needed to close out all issues with the IRS. Attorney’s Fees: Florida law provides a presumptive statutory fee schedule based upon the value of probate assets. It is as follows:

• $100,000 – $1 million: 3%
• Above $1 million-$3 million: 2.5%;
• Above $3 million-$5 million: 2%.
• Above $5 million – $10 million: 1.5%
• Above $10 million: 1%

Additional fees may be charged at an hourly rate for extraordinary services, such as sale of real estate, preparation of a tax return, representing the estate if the will is contested, etc. See F.S. 733.6171 Note: For more information about Florida probate attorney fees, see our report Florida Probate Attorney Fees: The Inside Scoop Personal Representative’s Fees: The fee rates for the PR are similar to, but not the same as, the attorney rates. See F.S. 733.617. Personal Representative’s Powers and Duties The Personal Representative (or “PR”) is a fiduciary and is responsible – and liable – to the estate beneficiaries. The PR is also the person responsible to the IRS for the decedent’s final income tax return, the Federal estate tax return if required, and any other tax returns required by the estate. PR’s first duties are to make sure all properties and papers of the decedent are secure and to marshal all the assets. Of course, the PR must strictly follow Florida law. As noted above, as soon as possible after the decedent’s death, the PR must engage a Florida probate attorney unless the PR remains the sole interested person. For a good summary of the PR’s duties and responsibilities see our report: Powers and Duties of the Florida Personal Representative Helpful Checklists for the Personal Representative Our office has several checklists to help the PR organize the estate. These are:

• Checklist of Initial Tasks for the Florida Personal Representative
• Checklist of Documents for the Florida Personal Representative
• Mini-Master Information Form: This form helps the PR inventory all estate assets. Request this form by contacting info@raricklaw.com

B. Six Critical Florida Probate Deadlines 1. Deposit Will: 10 days after death. 2. Filing Probate Inventory: 60 days after issuance of Letters of Administration. 3. Creditor Deadline For Filing Claim Against Estate: On or before the later of the date of three months after the first date of publication or thirty days after service of Notice Of Creditors for known creditors. F.S. 733.702(1). If there is no publication or service of the Notice Of Creditors, then the deadline is two years from the date of death. Note: Formal Administration requires publication of Notice Of Creditors. 4. Personal Representative Deadline for Objecting to a Claim: The PR may object to a claim at any time within the later of four months from first publication of the notice of creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). If the PR fails to object within this time period, the claim is deemed allowed. 5. Statute Of Limitations For Claims Against Either An Administered Or Unadministered Estate: Two years from date of death, except for any IRS claims. 6. Surviving Spouse Homestead Election: 6 months from decedent’s death to opt out of life estate in homestead and take 50% interest. See discussion on homestead below. C. Ancillary Probate Administration What is Florida Ancillary Probate Administration? This is a legal proceeding that is available for a decedent who resided in a state outside of Florida at time of death, but who has property in Florida – usually real estate. The Florida probate ancillary administration is the legal process required to transfer legal title for the Florida assets to the beneficiaries of the estate. When Available: If the decedent has a will: When the decedent has a will that is being probated in another state, the Personal Representative for the Estate (also called Executor in many states) may petition the Florida probate court to admit the decedent’s foreign will in the county where the property is located. Once the foreign will is admitted to record by order of a Florida court, the will shall be deemed as valid and effectual as if it were executed in Florida. With the approval of the Florida probate court, the Personal Representative can either sell the property or distribute it outright to the beneficiaries. See F.S. 734.104. If the decedent does not have a will: In the situation where the decedent did not leave a will and there are probate proceedings in the state where the decedent died, the Personal Representative may petition the Florida court upon proof of certain pleadings from the domiciliary probate. Time Frame: The time to open and close a Florida probate ancillary administration depends on the type of proceeding needed. The proceeding may be a Summary Administration for estates under $75,000 or where the decedent has been dead for more than two years. Otherwise, the proceeding will be a Formal Administration. For the time frame for each type of Administration see above. Ancillary Probate Administration Document Checklist: For a checklist of documents we typically need to open an Ancillary Administration see: Document Checklist for Ancillary Probate D. Homestead: Many Traps for the Unwary Homestead issues are the single most common issue that may trip-up attorneys. First, identify if the decedent had a Florida homestead. If the decedent lived in Florida and had Florida real estate the possibility of homestead issues must be analyzed. If the decedent split time living in Florida and another state, you must first determine the state of domicile, as only a Florida resident can claim homestead. If the decedent is survived by a spouse or minor child (a minor is any child under 18), Florida homestead law will trump anything written in the decedent’s will or trust. The surviving spouse is given a life estate and the minor child a remainder interest. See F.S. §732.401. Homestead is not considered part of the probate estate, but the personal representative may have the responsibility to preserve, insure and protect it. See F.S. 733.608(2). If there is any question regarding whether the property is homestead or if the decedent has creditors, the Homestead Petition should be filed, since homestead passes to qualified heirs free of claims against the estate. Note: New legislative changes to F.S. §732.401 allow the surviving spouse to opt out of the life estate, and instead elect to take a 50% tenancy-in-common interest in the property. See A Life Estate The Spouse Can’t Afford

For more information see Florida Homestead: Three Tricky Issues To Watch Conclusion Loss of a loved one is a difficult time for family and friends. We have helped guide many families through these times. Our attorneys will help you from the start to the end of the probate process. We will provide help you prioritize your tasks, organize the estate, and help you stay in compliance with our complex Florida probate laws. We will discuss attorney fees and how you can help to minimize such fees. We will endeavor to open and close the probate as expeditiously as possible. To schedule an appointment with a Florida probate attorney contact attorney Phil Rarick at (305) 709-2858 or prarick@raricklaw.com. Special Note The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.