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.
The 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.
The 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.
A 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.
1. Court Oversight of Personal Representative. Probate is a Court supervised process. The actions of the Personal Representative are reviewed by the Court. The Personal Representative has a duty to act in the best interest of your estate and is accountable to the Court for its actions.
2. Reduced Time for Creditors to File Claims. Under Florida statutes, during probate administration, a creditor is limited to a 3-month time period to file a claim with the Court. If the creditor fails to timely file a claim, then the creditor’s claim is forever barred. For comparison, if there is only a trust administration, a creditor has 2 years to file a claim.
3. Orderly distribution of assets pursuant to terms of Last Will and Testament, or laws of intestacy, if there is no Last Will and Testament. After payment of all claims and expenses of the Estate, the Personal Representative, (we recommend with the help of an attorney), prepares an accounting and plan of distribution which is provided to all beneficiaries. Each beneficiary has the right to object the accounting and plan of distribution. Once the accounting and plan of distribution is approved by all beneficiaries (or the time for objecting has expired), the Personal Representative distributes the remaining assets pursuant to the terms of the Last Will and Testament (or laws of intestacy if there was no Last Will and Testament). Prior to discharging the Personal Representative, the Court ensures all beneficiaries have signed a receipt for distribution.
4. Your Estate, while in probate, is a separate tax entity, which may afford income tax savings. Several of the expenses incurred during the probate process, including funeral and internment arrangements, probate administration expenses, personal representative fees, attorney fees, and CPA fees may be deductible against the income generated by the Estate assets.
Many of the tasks and duties listed above can be overwhelming for a Personal Representative. A qualified attorney can help make that process smoother and less daunting for you. If you need an experienced attorney in trust and probate matters, consider contacting BaskinFleece at 727.572.4545.
Digital Assets and their unexpected consequences.
1. Can a Personal Representative get access to the personal emails of a decedent? Can a Surviving Spouse get access to the personal emails of their deceased spouse? Can an Agent under a Durable Power of Attorney get access to the personal emails of the principal?
2. Who can get access to online financial accounts, such as PayPal, of a decedent? Who can get access to online financial accounts, such as PayPal, of a person who is living but incapacitated?
3. Who can gain access to online shopping accounts, such as Amazon or Etsy, of a decedent? Who can gain access to online shopping accounts, such as Amazon or Etsy, of a person who is living but incapacitated?
For the answers to these questions and other estate planning issues you might have, please contact BaskinFleece Attorney Colleen Carson at 727.572.4545.
In Part 2 of Digital Assets, learn what happens in different scenarios with digital assets and how it may effect your estate. For example, what happens to your Facebook account, who can control it, can someone change it, what is a legacy contact and does your Facebook page get deleted or memorialized? What about Bitcoin or PayPal account disclosures? Can the personal representative access an email account and its content? These questions and many others are covered in attorney Colleen Carson’s short video below:
In Part 1 of Digital Assets I cover who’s in control of digital assets such as Facebook, online photos, Pay Pal, iTunes and how to be protected. The short video below discusses complying with the Florida Fiduciary Access to Digital Assets Act (FFADAA) to avoid liability issues – and what the Personal Representative, Power of Attorney, Trustee and Guardian can and can’t do.
This new digital act applies to estate planning documents created before and after July 1, 2016, even if digital assets were not referenced in the estate planning.