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Articles Posted in Probate Litigation

By Phillip B. Rarick, Miami Probate Attorney

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.

By: Phil Rarick, Miramar Probate Attorney

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.

If you are a beneficiary or interested person of a Florida Will, you have numerous legal rights protected by Florida law.  These laws are designed to keep you informed about the probate administration and make sure the decedent’s wishes as described in the Will are fulfilled.

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

Answer by Miami Probate Attorney Phillip B. Rarick, Esq.

It can be expensive. According to a study by the American Association of Retired Persons (AARP), attorney fees for probate are usually three percent or more of the estate’s gross value. Florida presumptive statutory probate fees  for attorneys (F.S. 733.6171) are approximately:

Estate                                                                                 Florida Probate Fee
$100,000 $3,750
$250,000 $7,500
$500,000 $15,000
$750,000 $22,500
$1,000,000 $25,000
$2,000,000 $50,000

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.

I.       Executive Summary

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.

By Phillip B. Rarick, Esq.,  Miami Probate Attorney

Executive Summary

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.

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