Posted By Larry Tolchinsky on October 29, 2011

Some people leave behind a safe-deposit box when they pass away. Often times, the surviving spouse wants to rush to open the box immediately upon death. Florida law differs from other states in that the safe-deposit box is not sealed upon death, as the state does not have a revenue interest in the box’s contents. The estate’s personal representative must account for all of the decedent’s assets, including the safe-deposit box. Thus, your Florida probate attorney will likely advise the personal representative against allowing the surviving spouse or joint lessee from opening the decedent’s safe-deposit box.

If the joint lessee to the box is uncooperative with the personal representative, or if there is no joint lessee, Florida law allows the personal representative with letters of administration to access the decedent’s property in the box. The personal representative can remove all or part of the box’s contents. However, some Florida courts restrict what the personal representatives can do.

The surviving joint lessee can certain make claims of ownership to the box’s contents, including:

• Claiming the property is theirs because it was purchased with the survivor’s funds
• The decedent gave the property to them while alive
• The property was purchased with joint funds

A probate attorney can tell you what, if any, rights of ownership the joint lessee has to property in the box. It may take a judicial determination to decide this issue.

In Florida, any two of an employee of the institution where the box is located, the personal representative or the personal representative’s attorney must witness the initial opening of the safe-deposit box after death. All present have to sign a copy of the box’s inventory as well.

There are other requirements regarding safe-deposit boxes in Florida, including those related to foreign personal representatives and jointly-held boxes. Contact an experienced Florida probate lawyer if you have any questions.

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Tags: Florida Probate, Florida Probate Laws, Safety Deposit Box

Posted By Larry Tolchinsky on October 29, 2011

All is not lost in Florida when a Last Will and Testament has been lost or destroyed.  There is a procedure where a copy of the Will can be admitted to probate by filing a petition to establish the lost or destroyed Will along with other requirements discussed below.

Under Florida law, if a Will cannot be found there is a presumption that the testator (maker of the Will) destroyed the Will in order to revoke it. In order to probate a missing Will, it is necessary to prove that the testator did not revoke it. This can be done by showing the court that the Will was lost or destroyed without the testator’s consent, or with evidence that the testator did not have the capability to revoke the Will while it was in his or her possession.

The petition to probate the missing Will must contain a copy of the Will or its substance and an oath from two witnesses who do not have an interest in the petition’s outcome must be filed with the Court. If there is a correct copy of the Will, that takes the place of one witness. If the copy does not have the testator’s and witness’s signatures, it can still be admissible as evidence of the Will’s contents.

The attorney for the estate will have to send formal notice of the hearing to all persons with interest in the Will. All testimony at the hearing will be put in writing in the event of any future contests to the Will. If only a portion of the Will can be established, that part will go through probate unless it is unintelligible and incapable of interpretation on its own.

Establishing a lost or destroyed Will is possible, but not always easy. Make sure the Florida probate lawyer you hire is well versed on the latest Florida probate case law and procedure.

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Tags: Destroyed Will, Florida Probate, Florida Will, Lost Will

Posted By Larry Tolchinsky on October 21, 2010

More often than not, the probate process is simple and straightforward. Where the decedent executed a Will, his property is disposed of in accordance with it. Where there is no Will, his property passes to his spouse and/ or children. Sometimes, however, there are complications; for example, the decedent may have disinherited his spouse in his Will or an alleged biological child may pop out of the woodwork. Alternatively, a creditor may bring a disputable claim against the estate for a vast sum of money. Where there is controversy, litigation becomes likely.

Below are some examples of issues that may give rise to probate litigation:

• Will Contest: A party may allege that the deceased person’s Will was not executed with the requisite formalities and is thus invalid, or that he lacked the capacity to execute the Will or was unduly influenced into disposing his property as stated in his Will.
• Personal Representative’s Breach of Duties: The PR of an estate owes its beneficiaries the fiduciary duties of honesty, prudence and loyalty. When those duties are violated, the beneficiaries may petition the court to remove the PR and/ or to compensate the estate for any financial loss suffered due to the wrongdoing of the PR.
• Elective Share: In FL, the decedent’s surviving spouse is guaranteed a certain portion of his estate, which is calculated according to a detailed formula. If she is displeased with the inheritance created by the estate plan, she can instead take her elective share. The surviving spouse must make her election within 6 months of her receipt of the PR’s Notice of Administration.

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Tags: Probate Litigation

Posted By Larry Tolchinsky on October 21, 2010

The term “probate property” refers to property that someone inherits upon another’s death. As soon as the administration of an estate is commenced and a Personal Representative is appointed, probate real estate information becomes available at the county courthouse – even if the PR has manifested no interest in selling it. If you’re interested in buying probate real estate, you can access information at the courthouse or subscribe to a probate listing service that collects and provides such data on subject properties to investors at a cost. If you then decide to bid on a property, you can submit an offer to the PR’s attorney, who will forward it to the PR for his consideration.

As with all real estate purchases, there is always a risk that the probate property is somehow encumbered or burdened, which will transfer to your shoulders once you complete your purchase. You should know that if there is an outstanding mortgage on the probate property, it may be paid off with the decedent’s life insurance or other assets, but this is NOT automatic. According to FL Statute 733.803, “the specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense of the residue of the estate only when the Will shows that intent. A general direction in the Will to pay debts does not show that intent.” So the decedent’s beneficiary inherits the property with ALL liens, mortgages and other securities still attached in MOST circumstances. As with all real estate purchases, you should always, always perform a thorough title search prior to purchasing probate real estate, and you should obtain a comprehensive title insurance policy on it.

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Tags: Buying and Selling Probate Property

Posted By Larry Tolchinsky on October 21, 2010

The Personal Representative’s first order of business upon being appointed to administer a deceased person’s estate is to ensure that the decedent’s mail, etc. is being forwarded to him. The biggest reason for this is so that the PR is kept abreast of the decedent’s obligations to third parties (i.e. phone, power/ lighting, credit card, etc. companies). The decedent’s legitimate debts must be paid out of his estate to the extent that funds are thus available before any distributions of probate assets are made, or else the PR may be held personally liable for these debts (i.e. made to pay them himself).

Florida Statute 733.707 provides the order in which the decedent’s debts and/ or expenses associated with the administration of his estate must be paid. All such obligations are divided into “classes” and each creditor, etc. in a given class is entitled to full satisfaction before another class is considered. If at any point the funds contained in the decedent’s estate are extinguished, all unpaid creditors, etc. in classes not yet reached – and the decedent’s intended beneficiaries/ heirs – receive nothing.

• Class 1: The costs/ expenses of administration, and compensation for the PR and the PR’s attorney.
• Class 2: All reasonable funeral, interment and grave marker expenses, whether paid by a guardian, the PR or any other person, not to exceed the aggregate of $6,000.00.
• Class 3: Any unpaid federal taxes, and reimbursement for Medicaid or public assistance payments made on behalf of, or paid to, the decedent.
• Class 4: All reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
• Class 5: A family allowance.
• Class 6: Any arrearage from court-ordered child support.
• Class 7: Any debts acquired after the decedent’s death by the continuation of his business, but only to the extent of the assets of that business.
• Class 8: All other claims, including those founded on judgments and/ or decrees rendered against the decedent during his lifetime.

The PR must use “due diligence” to give actual notice of the probate proceeding to known or reasonably ascertainable creditors, so as to allow them sufficient opportunity to file claims against the decedent’s estate (if any). In FL, such notice is provided via personal service and/ or publication of a “Notice to Creditors,” which acknowledges the decedent’s death, the administration of his estate and provides information on the process by which a creditor may file a claim against the estate. The PR must formally and individually serve each known creditor of the decedent. A creditor is “known” if he is referenced in the decedent’s files or if a bill, etc. is sent to the decedent and forwarded to the PR. Additionally, the PR must publish the Notice to Creditors in a widely-circulated public newspaper in the counties in which the decedent was domiciled, resided, maintained property, etc. The Daily Business Review is an appropriate medium for this purpose in Broward and Miami-Dade Counties.

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Tags: Florida Probate Creditors

Posted By Larry Tolchinsky on October 21, 2010

The costs of probating an estate vary according to jurisdiction, length/ depth of the process, whether the Personal Representative is required to post a bond and which attorney the PR chooses to represent him. If the administration is relatively straightforward, an attorney may charge a flat fee for his role in the process plus all costs (see below). If there are complications down the road and the attorney is required to perform “extraordinary services” as defined in his retention agreement, the attorney will charge an additional fee based on his hourly rate – $275.00 to $600.00+. Alternatively, the PR’s attorney may adhere to the guidelines for fees contained in FL Statute 733.6171.

Assuming that you have been appointed as PR to administer an estate in Broward County, Florida you will likely be made to pay the following costs (not including attorney’s fees):

• Formal/ Ancillary Administration Filing Fee: $401.00. If, however, the estate is eligible for summary administration (i.e. if the estate is administered more than two years after the decedent’s death, the entire estate is worth less than $75,000.00, etc.), you will pay $236.00 if the estate is worth less than $1,000.00 and $346.00 if the estate is worth more than $1,000.00 but less than $75,000.00.
• Publication of the Notice to Creditors in the Daily Business Review: $172.00.
• Service of the Notice to Creditors on the Florida Agency for Heath Care Administration/ Additional Creditors: Approx. $6.00 per creditor. According to FL law, the PR must officially notify known potential creditors (i.e. credit card, phone, power and lighting companies, etc.) and, under certain circumstances, the FL Agency for Heath Care Administration – which may be entitled to reimbursement for any healthcare costs it bore on behalf of the decedent prior to his death – of the process by which it may seek satisfaction of its claims (if any) against the decedent during the administration of his estate.
• Posting of Bond: If the PR is located outside FL or if the court requires for some other reason that the PR post a bond before it will grant him the power to administer the decedent’s estate, the PR may apply/ pay a nominal fee to a professional company, which will act as his surety – it will agree to be responsible for the PR’s debt to the estate up to a certain stated amount if the PR fails to faithfully perform his duties.
• Personal Representative’s Deed: If there is any real estate in the probate assets, it may be necessary for the PR to execute a deed on the decedent’s behalf granting it to the decedent’s intended beneficiary. The PR will have to pay his attorney a flat or hourly fee to draft this document and an additional cost to record it and for the document tax. If the PR himself is the intended beneficiary of the real property, this step may, in some circumstances, be skipped.

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Tags: Probate Costs

Posted By Larry Tolchinsky on October 21, 2010

The PR’s attorney’s compensation is usually determined in one of three ways: (1) as agreed among the attorney, the PR and the persons who bear the impact of the fee (i.e. the beneficiaries), (2) as determined by the judge, or (3) as may be presumed to be reasonable under FL law. FL Statute 733.6171 provides general guidelines for the reasonableness of the PR’s attorney’s compensation:

• If the decedent’s estate is worth less than $40,000.00, the PR’s attorney should be paid a fee of $1,500.00 plus all costs.
• If the decedent’s estate is worth more than $40,000.00 but less than $70,000.00, the PR’s attorney should be paid a fee of $2,250.00 plus all costs.
• If the decedent’s estate is worth more than $70,000.00 but less than $100,000.00, the PR’s attorney should be paid a fee of $3,000.00 plus all costs.
• If the decedent’s estate is worth more than $100,000.00 but less than $1 million, the PR’s attorney should be paid a fee of $3,000.00 for the first $100,000.00 and at the rate of 3 percent of the remaining value of the estate plus all costs.
• If the decedent’s estate is worth more than $1 million but less than $3 million, the PR’s attorney should be paid at the rate of 2.5 percent of the total value of the estate plus all costs.
• If the decedent’s estate is worth more than $3 million but less than $5 million, the PR’s attorney should be paid at the rate of 2 percent of the total value of the estate plus all costs.
• If the decedent’s estate is worth more than $5 million but less than $10 million, the PR’s attorney should be paid at the rate of 1.5 percent of the total value of the estate plus all costs.
• §  If the decedent’s estate is worth more than $10 million, the PR’s attorney should be paid at the rate of 1 percent of the total value of the estate plus all costs.

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Tags: Personal Representative Attorney Fees

Posted By Larry Tolchinsky on October 21, 2010

A deceased person’s court-appointed Personal Representative manages the administration of his estate from start to finish. To ensure that his activities are in complete compliance with Florida probate law, it is advisable for the PR to hire a licensed FL attorney to help him through the process. Among other things, the attorney can help the PR to complete all necessary paperwork, schedule any hearings, etc., and assist with whatever additional legal issues may arise in the course of administration. The attorney can also notify the decedent’s potential creditors of the administration of his estate and, if applicable, discharge his debts prior to the distribution of his assets to his beneficiaries. As such, the Personal Representative will be protected against personal liability for the decedent’s debts, even if claims are raised after administration.

The PR is compensated for the time, effort and money he expends to administer the decedent’s estate before the decedent’s debts (including back taxes) are paid and before his assets are distributed to his beneficiaries. If he hires an attorney, accountant or other professional to help with the process, he is entitled to full reimbursement for these fees, so long as they are reasonable.

The PR’s compensation is usually determined in one of five ways: (1) as set forth in the decedent’s Will, (2) as set forth in a contract between the PR and the decedent, (3) as reasonably agreed among the Personal Representative and the decedent’s heirs or beneficiaries, (4) as determined by the judge, or (5) as may be presumed to be reasonable under FL law. FL Statute 733.617 provides general guidelines for the reasonableness of the PR’s compensation. According to 733.617, if the decedent’s estate is worth less than $1 million, the PR should be paid at the rate of 3 percent of the total value of the estate. If the decedent’s estate is worth more than $1 million but less than $5 million, the Personal Representative should be paid at the rate of 2.5 percent of the total value of the estate. If the decedent’s estate is worth more than $5 million but less than $10 million, the PR should be paid at the rate of 2 percent of the total value of the estate. If the decedent’s estate is worth more than $10 million, the PR should be paid at the rate of 1.5 percent of the total value of the estate.

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Tags: Personal Representative Fees

Posted By Larry Tolchinsky on October 21, 2010

The court will generally adhere to the decedent’s instructions if he designated who is to serve as his Personal Representative in his Will. If the person is unavailable or unwilling to serve, however, or if the decedent did not name a PR in his Will, \ the court will generally appoint a close relative of the decedent to serve as such. The PR is compensated monetarily for his services in this regard.

The PR has a legal duty to administer the decedent’s estate in accordance with Florida law. Among other things, the PR is responsible for the following:

• He must identify, gather, value and safeguard the decedent’s “probate assets,” which refers to all real and personal property that does not pass by operation of law to another person/ entity upon the decedent’s death. An example of non-probate property is where the decedent jointly held with right of survivorship a bank account or real estate tract with another person, so that when the decedent died, its ownership automatically passed to the surviving joint owner.
• He must formally serve the decedent’s known creditors with a Notice to Creditors and publish the Notice to Creditors in a local newspaper to notify and instruct potential claimants to file their claims against the estate in the manner prescribed by FL law, or else lose their right to satisfaction.
• He must serve a Notice of Administration on those individuals who may object to the administration of the decedent’s estate (i.e. disinherited children, parents, etc.), inviting such individuals to challenge the administration in accordance with FL law, or else lose their right to do so.
• He must object to improper claims made against the decedent’s estate and defend any lawsuits brought on such claims.
• He must file the decedent’s tax returns for the current year and for all additional periods during the decedent’s life that he failed to file his own taxes.
• He must employ professionals (i.e. attorney, accountant, appraiser, investment advisor, etc.), whose services are necessary to properly administer the decedent’s estate, and pay their fees and other expenses, for which he is entitled to reimbursement.
• He must pay the statutory amounts due to the decedent’s surviving spouse or family (i.e. the decedent may not entirely disinherit his spouse, no exceptions), and distribute the decedent’s probate assets to his heirs or named beneficiaries as prescribed in his Will or by FL law.

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Tags: Florida Personal Representative, Personal Representative's Duties

Posted By Larry Tolchinsky on October 21, 2010

A deceased person’s estate is administered primarily by his court-appointed Personal Representative. In Florida, the PR can be an individual, bank or trust company, subject to certain restrictions. An individual, for example, may only serve as PR if he is a FL resident or, alternatively, if he is a spouse, sibling, parent, child or other close relative of the decedent, regardless of where he resides. Similarly, to qualify to serve as PR, a trust company must be incorporated under the laws of Florida, and a bank must be authorized and qualified to exercise fiduciary powers in Florida.

If the decedent nominated a specific individual/ entity to serve as his Personal Representative in his validly executed Will, the court will generally respect the decedent’s choice (so long as the person/ entity is legally qualified to serve as noted above). If, however, the decedent did not leave a validly executed Will or if the person/ entity he nominated to serve as Personal Representative is unqualified or unable/ unwilling to serve, the court will look to FL Statute 733.301 to determine who to appoint as the decedent’s PR. According to 733.301, the decedent’s surviving spouse has the first right to be appointed by a judge to serve as his PR. If the decedent was not married at the time of his death or if the surviving spouse declines to serve, the person selected by a majority in interest of the decedent’s heirs will be appointed as PR. If the heirs cannot agree as such, the court will usually appoint the decedent’s heir of nearest degree.

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Tags: Personal Representatives Qualifications