Florida_Probate_Court_Information

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					Florida Probate Court Information

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869

Summary:
The Florida probate court system is an efficient and speedy method by
which the assets of a deceased Florida resident are gathered, debts of a
deceased are paid, and the assets distributed to the beneficiaries of the
deceased.


Keywords:
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lawyer, probate attorney Florida


Article Body:
1. What is Probate?

Probate is the method by which the assets of a deceased person are
gathered, creditors paid, and the remainder of the estate distributed to
beneficiaries. In most Florida counties, the probate system is conducted
in a specialized probate division of the Circuit Court, under the
oversight of one or more probate judges.


2. How is Probate Initiated?

Although any beneficiary or creditor can initiate probate, normally the
person named in the will as Personal Representative, also known as the
executor in other states, starts the process by filing the original will
with the court and filing a Petition for Administration with the probate
court. If there is no will, typically a close relative of the decedent
who expects to inherit from the estate will file the Petition for
Administration.


3. Who is Eligible to Serve as Personal Representative?

A bank or trust company operating in Florida, any individual who is
resident in Florida, and a spouse or close relative who is not
necessarily resident in Florida are all eligible to serve as the Personal
Representative. Nonrelatives who are not resident in Florida are not
eligible to serve as Personal Representative.


4. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal
Representative will serve, if eligible. If that person is unable or
unwilling to serve as Personal Representative, the person chosen by a
majority of the beneficiaries in interest of the estate shall choose the
Personal Representative. If there is no will, Florida law provides that
the surviving spouse may serve, or, if there is no spouse or the spouse
is unable or unwilling to serve, the person chosen by a majority of the
beneficiaries in interest shall serve.


5. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate
estate to retain a Florida probate attorney. Although the Florida
probate forms are available to the public, these are of no use to a non
attorney.


6. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal
Representative, based on a percentage of the assets of the probate
estate.


7. Is the Family of a Deceased Person Entitled to a Portion of the
Estate?

Florida law provides for a family allowance for the surviving spouse and
minor children of the deceased, as well as an elective share for a
surviving spouse, thirty percent of the estate, if the surviving spouse
would prefer the elective share to that left under the terms of the will.
A Florida resident is entitled to disinherit adult children, for any or
no reason. Of course, if it can be shown that the adult children were
disinherited as a result of the influence of another, they may have
recourse through the probate court.


8. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that
pass by means of title, such as real estate titled as “Joint Tenants with
Right of Survivorship,” or bank accounts titled as “Transfer On Death”
are not subject to the probate process. Assets that pass by means of a
beneficiary designation, such as life insurance or some retirement
accounts, are also not subject to probate.

In some situations, however, assets that would otherwise pass by title or
beneficiary designation can be subject to the probate process,
particularly in the case of a surviving spouse choosing to take an
elective share against the estate.


9. How is Distribution of the Estate Handled if there is no Will?

Florida law sets forth rules for the distribution of an estate if there
is no will.
If these is a surviving spouse and no lineal descendants, the surviving
spouse is entitled to the entire estate.

If there is a surviving spouse with lineal descendants, and all lineal
descendants are also descendants of the surviving spouse, the surviving
spouse is entitled to the first $20,000 of the probate estate, plus one-
half of the remainder of the probate estate. The descendants share in
equal portions the remainder of the estate.

If there is a surviving spouse with lineal descendants, and not all
lineal desdendants are also descendants of the surviving spouse, the
surviving spouse is entitled to one-half of the probate estate, and the
descendants of the deceased share the other half of the estate in equal
shares.

If there is no surviving spouse and there are descendants, each child is
entitled to an equal share, with the children of a deceased child sharing
the share of their deceased parent.

If there is no surviving spouse and no children or other descendants,
Florida law provides additional rules for distributing an estate in such
circumstances.


10. Who is responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is collected from the
estate of the deceased. Depending on the terms of the will, the estate
tax may be paid from the probate estate only, or also from a living
trust, life insurance proceeds, and other assets passing directly to
beneficiaries outside the probate estate. The estate tax return, Form
706, is filed by the Personal Representative. The Form 706 is due to be
filed 9 months after the date of death.