No Valid Will? Here’s What Happens…

surviving spouseIf someone dies without a valid will, he or she is “intestate.”                                     

Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

1. If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.

What happens when there is no valid will?2. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

3. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

no will then what happens?4. If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.

5. If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.

6. Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Wills in FloridaThe distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in leui of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

BaskinFleece can be contacted at 727.572.4545

 
The information above is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

4 Estate Planning Tips Before a Hurricane

Destruction by Hurricane Irma

Photo credit: Joe Raedle/Getty Images

In the wake of Hurricane Irma, many Pinellas and Hillsborough County residents are taking a hard look at their hurricane plansThese four tips will help you stay prepared as hurricane season marches on:

  1. Locate your important documents, including all estate planning documents.
  2. Review your estate planning documents. If your estate plan no longer meets your current intent, you should meet with an estate planning attorney to update your documents after the storm has passed.
  3. Attorney Randall Baskin

    Make sure that any original documents are kept in a dry, safe place until the storm has passed.

  4. Make multiple copies of your Declaration of Living Will and Health Care Surrogate Designation and keep the copies with you in the event you have a health emergency while evacuated.

To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit www.BaskinFleece.com.

BaskinFleece was Named One of the Best Law Firms …

U.S. News… in US News & World Report’s 2017 rankings, receiving a tier two distinction for the Tampa metro area in the field of trusts and estates litigation. Firms included in the list are recognized for “professional excellence with persistently impressive ratings from clients and peers.” Selection is based on lawyer and client evaluations, peer review from leading attorneys, and review of additional information provided by the law firm. To be eligible, firms must also have at least one lawyer listed in the 19th edition of The Best Lawyers in America.

personal representative feeBaskinFleece handles trust litigation, probate litigation, and guardianship litigation cases in St. Petersburg, Tampa, Clearwater, and throughout Florida, from the pre-suit stages – including mediation – all the way through trial, both jury and non-jury, and at the appellate level, if necessary. In addition, the firm assists clients with estate planning from the drafting of a simple will to complex tax planning and wealth transfer matters for high-asset estates. BaskinFleece handles all aspects of probate and trust administration as well, accomplishing the process capably, competently, and in a timely fashion for the benefit of heirs, beneficiaries and all parties involved.

BaskinFleece also provides legal services related to real estate and business law, both transactional and litigation.

In all matters, the client is and remains the firm’s main focus. Aspects of litigation such as cost, emotional impact and timeliness are all important to the client, and the firm strives for an end result which leaves the client feeling that justice was accomplished in an efficient and effective manner.

For related help, you can contact BaskinFleece at 727.572.4545.

Personal Representative Compensation

Personal representative CompensationThe personal representative, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants), are entitled by law to reasonable compensation.

 personal representativeEstate expenses: The personal representative’s compensation is usually determined in one of five ways: (1) as set forth in the will; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation; (4) the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (5) as determined by the judge.

estate expenses and feesThe fee for the attorney for the personal representative is usually determined in one of three ways: (1) as agreed among the attorney, the personal representative, and the persons who bear the impact of the fee; (2) the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (3) as determined by the judge.

U.S. NewsBaskinFleece was named one of the Best Law Firms in US News & World Report’s 2017 rankings, receiving a tier two distinction for the Tampa metro area in the field of trusts and estates litigation. Firms included in the list are recognized for “professional excellence with persistently impressive ratings from clients and peers.” Selection is based on lawyer and client evaluations, peer review from leading attorneys, and review of additional information provided by the law firm. To be eligible, firms must also have at least one lawyer listed in the 19th edition of The Best Lawyers in America.

For help or answers to will and estate related questions, you can contact BaskinFleece at 727.572.4545.

Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

What everyone should know about Probate.

Probate and the courtsProbate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances. For more information about Probate Administration, Wills and Intestacy please contact BaskinFleece at 727.572.4545

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Probate Ensures the Decedent’s Estate Debts Are Paid

Probate decedents finances
One of the primary purposes of
probate is to ensure that the decedent’s estate debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

Trustee, personal representative dutiesThe legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before making distributions from the will to the decedent’s beneficiaries.

Estate expenses: The personal representative can be compensated in FloridaThe court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

For help or answers to estate-related questions, you can contact BaskinFleece at 727.572.4545.

 
This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Proper Execution of a Will and What Happens When a Will Is Lost?

Estate Planning will signing listA will cannot dispose of any of the decedent’s property until it is admitted to probate. In order for a will to be admitted to probate, it must be executed in accordance with the formalities required by Florida law. The testator must sign his will at the end in the presence of two attesting witnesses. The attesting witnesses must sign in the presence of each other and in the presence of the testator. If the testator attaches a self-proof of will, the will may be admitted to probate without further proof. Without a self-proof of will, an oath of one of the attesting witnesses may be required before the will is admitted to probate.

What Happens When a Will Is Lost? Upon the testator’s death, if a will, executed by the testator and kept in his possession, cannot be found, there is a presumption, absent other evidence, that he destroyed it with the intention of revoking it. However, this presumption may be overcome and the will may be admitted to probate if an interested person is able to establish the full and precise terms of the lost or destroyed will. The content of the lost or destroyed will may be proven with a correct copy of the will and the testimony of one disinterested witness. Without a correct copy, the content may be established through the testimony of two disinterested witnesses.

Related video: Estate Planning documents you must have…

Baskin Fleece handles all aspects of estate planning, probate administration, and litigation. To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, please visit www.BaskinFleece.com.