A little known fact about Florida probate law is that if more than 2 years have passed since the date of death, virtually all creditors claims are barred! Yes, barred - meaning, no can do.

Though there are rare ocassions where claims can be enforced, it is simply that … rare.

What does this mean to a probate petitioner?

1.  A Notice to Creditors need not be published (saving anywhere from $100 to $300 on publication costs).

2.  Summary Administration is generally available (short form probate).

3.  No waiting 90 days for the creditor period to expire before assets are distributed.

Please don’t misunderstand.  There are plenty of reasons to pursue probate even if it has been less than 2 years since the date of death, but the 2 year rule is always a welcome situation.

We just finished preparing our FREE Florida Probate ebook for anyone who is faced with the possibility of probate (that means you!)

Our book is filled with information with answers to questions such as:

… “What the heck is Summary Administration?”
… “Why do I need an attorney?”
… “What is considered personal property?”
… “Do I really have to go through Formal Administration?”
… “Will probate prevent me from selling the house?”
…  and much much more!

It’s a completely free download, and as an added bonus, you’ll get periodic tips on how to manage your own estate assets, learn about new issues and trends in Florida probate and much much more.

Of course you can always just fill out our call back form and an attorney will call you back to discuss your case!

Give me my book!

One of the biggest mistakes you can make as both the personal representative of the estate or as a Florida probate attorney, is reading the will too quickly or not reading it at all!

I just completed a probate case for a client who had previously sought the services of another probate attorney.  Unfortunately for both lawyer and client, they missed a crucial four word phrase in a very unassuming clause of the will which led to all kinds of havoc and chaos.  I did manage to unravel the mess, but it wasn’t fun.

When I first talked to this client during our initial phone consultation, she did not have a lot of nice things to say about the attorney.  That’s pretty typical for any client that has abandoned his or her previous attorney, but when I found out about the oversight in the will, frankly I felt bad for the previous attorney.  It was a mistake anyone could’ve made.

Our office policy is to not take any cases if we have not yet thoroughly reviewed the last will of the decedent.

If and when you call our office, be prepared to discuss the finer points of the last will and testament of the decedent, if one exists.  If you don’t have it handy during our consultation, you’ll be asked at some point to fax it to our office, or scan and email it to us. No attorney should take a probate case if he or she hasn’t actually read the will.

Surprises can be expensive and time-consuming for everyone.

Here’s a quick list of questions we entertain quite often.

(60 seconds is a stretch unless you read fast!)

10. What is probate anyways?

The court process of paying off debts and distributing assets to a decedent’s heirs.

9.  My husband just died.  Do I need to probate the house?

If it was your homestead and you were on the deed, then no.  If you weren’t on the deed, yes.  There are potentially a half dozen answers to this question - contact us!

8.  Isn’t probate in Florida just like any other state?  Aren’t there just a few forms to fill out?

That was 2 questions.  Yes and No - it’s not ever that easy.  Anyone who tells you otherwise won’t be there when something goes wrong.

7.  Do I really need an attorney?

If you’re the personal representative (executor), then yes.

6.  I took care of mom in her last year.  Can I get reimbursed?

Maybe.  But I’m sure mom didn’t charge you for childcare when you turned 18!

5.  I have 3 siblings.  Dad told me he wanted me to have the house. There’s no will though.

If there’s no will, he probably didn’t want you to have it that badly!  (just joshin’)

4.  Is a copy of the Will good enough?

Typically, no.

3.  How do I contest a Will?

You call a Florida probate litigator.  We don’t do Will contests.

2.  How long does probate in Florida take?

Depends on the size of the estate, the number of creditors and the efficiency of the probate court.

1.  How much do you charge for probate?

How much do you have?  Just kidding - see our sample Florida probate fees schedule.

Huh?

Okay, where do I begin?

There are invariably two kinds of Wills that come across my desk:  “Self-Proved” and NOT “Self-Proved”.

Silly, I know, but the difference is quite significant.

Self-Proved Wills

A Will is “Self-Proved” if there is an Affidavit attached to the Will which essentially says that the Will was signed by the testator before 2 witnesses and a notary public.  This is often referred to as a “Self-Proving Affidavit” and frankly, I prefer when it’s titled that way…makes it foolproof (sometimes it will just say “Affidavit”).  The first clue that there is such an affidavit attached to the Will is a notary seal or stamp towards the end of the Will.

If the Will is indeed “Self-Proved”, it should be admitted into probate administration without the necessity of any further proof.  Neither the witnesses or the notary public need be located for further testimony or confirmation.

Wills that are NOT Self-Proved

When there is no such affidavit, things become a bit more complicated.

We now have to determine if the decedent was domiciled in Florida or another state, that is, where did the decedent maintain his or her permanent resident (prior to death.)

Decedent was not “domiciled” in Florida

If the decedent was NOT a domiciled in Florida, but the decedent’s estate was administered (”probated”) in the decedent’s home state, then there is likely to be an “Order Admitting Will to Probate” or some equivalent in that state.  The existence of such an Order is typically enough for the Will to be admitted in a Florida probate court.

However, if the decedent’s estate was never probated in the “home state,” then we will have to appoint a commissioner to take the oath of at least one of the original witnesses to the Will.  Alternatively, you also have the option to have the personal representative take a similar oath if the witnesseses have died or are otherwise cannot be located.

This process of appointing a commissioner is accomplished through a “Petition to Appoint Commission.”

Decedent was “domiciled” in Florida

If the decedent was domiciled in Florida, we must secure an Oath of Witness.  The witness generally must appear before a clerk of court in any county in Florida as part of a “proof of will” process.  Once that is completed, the Will should be admitted barring any objection from a third party.

I’ll avoid getting to detailed with further legal protocol at this point.  That said, you should realize that this is a rather complicated process - much more so that most people realize.

Moral of the story:  Make sure your Will contains language equivalent to Florida’s “Self-Proving Affidavit.”  You and your heirs will be glad you did!

Even if you can, you are taking a huge risk.

Why? In all but very small situtations, a personal representative (executor) must be represented by an ATTORNEY. (Not a Paralegal)

I haven’t researched it recently, but the probable reason is that the probate system is vulnerable to fraud by claimants, heirs, personal representatives and petitioners. I suppose the legislature decided the potential fraud outweighs the inconvenience of requiring attorney representation.

Even if you do find forms, it isn’t simply a matter of filling them out, checking boxes and signing paperwork. They have to be prepared in a certain manner, with proper clause inclusions and omissions contingent upon supporting documentation.

Is the Will self-proved? Was a domiciliary proceeding filed in any other state? A host of other questions can change the way those “forms” should be prepared and the kind of supporting documentation that must be submitted.

Yes, the clerk may accept them, but in 100% of the cases I’ve taken where the client tried to submit forms to the probate clerk, something went wrong.

Even worse, you may make it even harder for the attorney to fix your mess. Mistakes can be expensive: once you submit a Petition, it becomes a part of the record and having an attorney back you out of the mess can cost more than if you had started with representation.

There is one isolated proceeding, “Disposition of Personal Property without Administration” that doesn’t require an attorney, but because the asset thresholds are so strict, most clients will require Summary or Formal Probate Administration.

You certainly don’t have to retain us, but you should retain someone!

Forget the search for forms. If you want to discuss your case for FREE, fill out the form below.

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The main problems with this Will were that it was improperly witnessed/notarized and one of the heirs had predeceased the decedent. That heir had children that according to this will were essentially written out and disinherited (which appears to be unintentional).

This further supports my gripe with a “Will-in-a-box”. There is no guidance. There is no discussion of how the Will shall be “played out” in probate administration. These document companies have sold the document, perhaps written a thick orange book or secured a high profile attorney to endorse the product, but has no intention of helping you or your heirs if things go wrong.

Typical questions:

If the company says that the Will is “state specific”, shouldn’t it be effective?

Perhaps. The number one problem with these forms is that the testator (person executing the Will) typically doesn’t understand the formalities of execution. There are witness requirements and notarized affidavits that should be included to facilitate (and I do mean facilitate) administration in Florida probate.

So if I do my research or the forms give instructions on how to execute them properly, am I in the clear?

Depends. A few other glaring omissions that I’ve seen include:

1. Waiving bond for the personal representative
2. Planning for predeceased children or heirs
3. Contingent trusts in the event that a minor or otherwise incompetent child receives a distribution
4. Planning for distribution of one’s homestead

Having a Will-in-a-box is better than having no will at all (most of the time), but many lawyers will prepare one properly for a few hundred bucks. Why are you risking thousands, tens of thousands or perhaps hundreds of thousands of dollars in cash or real estate on a $9.95 form?

For Sellers:

If you just inherited property in Florida and you’re looking to sell it, make sure your ducks are all in a row. You can’t sell the property you don’t legally own!

We frequently get calls from real estate agents wanting to know how long probate in Florida will take. The answer is invariably, “it depends.” Don’t assume your realtor knows anything about probate. Realtors know plenty about real estate, but many of them don’t understand probate. Technically, a real estate listing agreement probably isn’t even binding until you have actually inherited the property through probate administration.

If the property will go through a formal real estate closing and title insurance will be issued, probate is undoubtedly going to be required by the title company! This can be a deal breaker for a potential buyer if it is not addressed early!

On the other hand, if you plan on signing over a quit claim deed, the buyer will eventually discover the probate problems - a headache you do not want to deal with long after you’ve “closed” the deal.

For Buyers:

If you suspect that the seller is liquidating an estate, ALWAYS inquire if the property is in probate administration or if it has been through probate! If the answer is “yes” it should be quite simple to confirm in the county clerk’s official records.

Furthermore, unless the seller is a surviving spouse, it is typically not enough to simply record a death certificate to “clear” title to the property!

Lately, it’s been for clients who are trying to refinance on the house mom or dad left to them.

Once you “lock in” that interest rate, you’ve got X number of days to close the loan, correct? Well, if the real estate attorney, title insurance agent or title company gets to it soon enough, you might find that you need to probate the house first!

Important things to know:

1. Before you go to refinance or even sell, get the probate out of the way.
2. Probate judges don’t expedite probate cases just because you’re trying to get that 4.9% interest deal of the century. Nope, doesn’t matter how bad you really need the money.
3. Probate in Florida, even summary administration, can take a month or two. In complicated cases, maybe even 6 months!
4. Even if you’re just probating mom’s house, it’s not necessarily simple. Don’t assume it’s simple.
5. Get organized. Collect the death certificates, Wills, last recorded deeds and make sure all the beneficiaries are on board.
6. If there’s no Will, ALL of the beneficiaries need to be accounted for. Yes, all of them.
7. If you’re trying to sell the property, make sure you’ve got probate in order before you sign any purchase/sales agreements. If you’re refinancing, make sure your mortgage broker or banker knows you may have to probate the property.

Just a few good tips to get your ducks in a row. PROBATE COMES FIRST!

Trusts do NOT avoid probate if the trust (revocable trust or living trust) was not funded properly before the death of the decedent.

For example, if mom created a Living Trust and all of her life insurance, bank accounts and other assets were paid out to the trust when she died (via a beneficiary designation), except for her house, the house would need to go through probate administration (albeit a relatively simple administration.)

Bottom line: Don’t assume that just because mom or dad had a trust, probate in Florida is completely avoided.