Florida Probate Legal Questions

You should seek out a probate attorney in your area. The children are heirs and would share equally in the estate assets. If the value of the estate does not exceed $75,000.00, then a shorter form of probate can be initiated. An attorney experienced in the field of probate administration can guide you through the probate process.    ... Read More

If someone becomes incapacitated in Florida, and there is no durable power of attorney in place to allow for someone to provide care and supervision of the incapacitated person, the most likely result is that a family member, friend, or the State of Florida in the absence of a family member or friend, will seek a declaration from the probate court that the person does not have legal capacity, and a guardian will be appointed to provide for the care of the person and the management of the incapacitated person's assets. The first step is for the interested person to file a petition to determine incapacity.  The court appoints an attorney to act on behalf of the incapacitated person, and the court also appoints a panel consisting of two physicians and one social worker, to evaluate the incapacitated person.  If they determine the incapacitated person lacks "legal capacity" they make that recommendation to the probate judge.  The probate judge holds a hearing and takes evidence and testimony concerning the mental and physical capacity of the individual.  If the court determines after hearing the testimony and the evidence that the person lacks legal capacity then the court enters an order to that effect.  After the court determines the person lacks legal capacity, the court will appoint a legal guardian of the person and property of the incapacitated person. The same person may be appointed as both the guardian of the person and the property, or different individuals can be appointed - one to provide the care of the person, the other to provide the management of the assets. Upon appointment of the guardian, the guardian will make all decisions for the incapacitated person until the court determines otherwise.  The guardian must periodically report to the court what is the status of the incapacitated person, and must account at least annually for the assets of the incapacitated person. At the death of the incapacitated person, the guardian files a final report and is discharged from further responsibility other than to turn over the assets of the incapacitated person to the personal representative (executor) of the probate estate for the incapacitated person. You can learn more about guardianship law at our website:  www.thecolemanlawfirm.net/Florida_Guardianship_Law.php Randy Coleman  ... Read More

In Florida, when a deed transfers property to multiple parties, the form of ownership is deemed to be a tenancy in common, unless the language in the deed specifically provides for the right of survivorship (except with regard to property held by husband and wife as tenants by the entirety).  Florida Statutes, Section 689.15. As tenants in common, each of the 3 co-owners would be deemed to own a 1/3 undivided interest in the real property.  Upon your grandmother's death, she can direct where her 1/3 interest goes through her will.  In the absence of a will her share would pass to her intestate heirs. In Florida, that would be her children if she has surviving children, if not then to her grandchildren, and if no grandchildren, then to more remote relatives. To transfer her interest in the real property, it will be necessary to administer her estate through probate.  If the value of her estate is less than $75,000 (other than exempt personal property or homestead), then a summary administration would allow for the fairly quick handling of the estate.  If her assets (other than exempt personal property and homestead) exceeds $75,000, then it will be necessary to administer a formal probate administration. Randy Coleman... Read More

Whether the personal representative (executor) can evict you depends on whether your father had a will, and if he did what the will provides for the disposition of the home. Under Florida law the owner of a homestead property is restricted in the distribution of the homestead property.  If your father has a surviving spouse or a minor child, then he is not able to legally provide for the disposition of his homestead.  Pursuant to the applicable provisions of the Florida Constitution, in that event the surviving spouse would receive a life estate (allowing her to live in the house for the remainder of her life), and the remainder interest would automatically go to his children, in equal shares. If there is no surviving spouse or minor child, then he would have the right to specifically provide for the disposition of the homestead to whomever he pleased.  If he provided in his will that the home was to be sold, or distributed to someone who is not his descendant, then the personal representative (executor) would have the authority, and the responsibility, to take possession of the homestead property immediately, preserve the property and provide for its disposition as provided in the will. If he did not have a will, or if in his will he provided for the homestead property to be distributed to his descendants, or other legal heirs (as defined in the intestacy statute), then the personal representative has no authority over the homestead, other than to protect and preserve it if it is not otherwise being maintained.  If your father had no will, no minor child or surviving spouse at the time of his death, then the home passes to his surviving children and is protected homestead (not subject to the claims of creditors of the estate). Similarly, if you father had a will and provided for the homestead property to be distributed to a child, children, or other legal heirs, the property automatically passes to those individuals, also free of the claims of creditors. Homestead law in Florida is often quite complex and has a number of nuances.  However, if your father had no will, or had a will that provided for the disposition of the homestead to children or other legal heirs, then the personal representative has no authority over the homestead except to preserve it. Randy Coleman... Read More

It is the responsibility of the Personal Representative to pay the creditors of the estate and then distribute the remaining assets to the proper beneficiaries. A Personal Representative cannot place conditions on the distribution of assets. You should seek out a probate attorney to represent your interests as beneficiary of the estate.  ... Read More

It's not possible to give you a final answer based on the information you have provided.  I will attempt to outline the alternatives that appear from the facts you have provided. If the real property in Florida was acquired during the period of time your mother and step-father were married, and the deed provides that they took title as husband and wife, they owned the property as tenants by the entireties, and your mother's ownership interest in the property immediately, by operation of law, passed upon your mother's death to her husband, outright.  Nothing can or need be done to change that outcome. If, however, the deed specifically provided that they took title as "tenants in common" then your mother owns a 1/2 ownership interest in the property that is subject to being disposed of in the manner set forth in your mother's will. If the property was owned by your mother and step-father when they were married, and they subsequently divorced, then the property was owned by them as tenants in common and your mother's 1/2 ownership interest should be distributed according to your mother's will. If the property was acquired by your mother and step-father before they were married, or after they were divorced, then it is probable that they owned the property as tenants in common and your mother's 1/2 ownership interest should be distributed according to her will. A review of the deed to determine exactly how the property was titled when acquired, and their marital status at the time they acquired the property, and their marital status at the time of your mother's death, can all have a bearing on the ownership rights your mother's estate may be entitled to. If your mother's interest is subject to her will, then it will be necessary to obtain an "exemplified" copy of the will from the probate court in the UK, or the original will if there was no probate in the UK, and submit it for probate in the country where the real property is located.  Through the probate process, subject to claims of creditors, and other issues associated with a probate proceeding, your mother's interest in the property, if any, will be transferred to the trustee of the trust established by your mother's will for you and your brother/step-brothers. You should contact a Florida probate attorney and provide the attorney with a copy of the deed through which your mother and step-father took title to the real property to determine what your most appropriate course of action should be. C. Randolph Coleman  ... Read More

If you do not want to serve as Co-Personal Representative of your father's estate, you can waive your right to priority. Whether your brother will serve by himself or you will be replaced by a Successor Personal Representative depends on what your father's will states. Your brother should seek out a probate attorney to help him carry out his responsibilities as Personal Representative. ... Read More

If you have made a beneficiary upon your death for the annuity, it will pass to the beneficiary at your death without needing to be probated. Therefore, you do not need to reference the annuity in your will. The estate planning attorney who assets you with your will can explain each of your assets, and how they will be treated in your estate plan. ... Read More

For a will to be valid in Florida it must be in writing and meet the following requirements: Testator must sign at the end of the will Two witnesses must sign the will in the presence of the testator and in the presence of each other To determine whether the will was properly executed, see an estate planning attorney. ... Read More

If this mistake is minor and it is clear that you are the intended executor it should not be a problem. If the mistake leaves ambiguity in who the testator (your father) intended to have as his executor it may be that the probate court will need to intervene on the issue. In Florida it is necessary to have an attorney to aid in the probate process. A probate or estate planning attorney can help you determine whether the misspelling is an issue of concern. ... Read More

The residuary clause in your Mother's will would be controlling on this issue. The reason for a residuary clause in a will is to convey property that is not otherwise disposed of by will, particularly property acquired by the testator after executing her will. Therefore, the residue of an estate can fluctuate. ... Read More

An individual can change his Power of Attorney as long as he has not been legally declared incapacitated. The authority of any agent under a Power of Attorney automatically ends when one of the following things happens: (1) the principal dies, (2) the principal revokes the Power of Attorney, (3) a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force, (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these instances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.... Read More

There is a short period of time for contesting a will. Generally, this must occur 90 days after the Notice of Administration has been provided by the Personal Representative, or 20 days in the event that Formal Notice of the probate process is received before the will has been probated. Prompt action is required to contest a will. ... Read More

It is possible to obtain forms from the internet or other sources.  However, since you reside in Florida, if you decide to prepare these forms yourself, it is important to be sure that the forms are compliant with the requirements of the Florida State Statutes and that the forms are also executed in compliance with the Florida State Statutes.  In many cases, I have seen situations where clients have brought in documents which they are prepared themselves, which are not executed properly and would not be accepted in probate court.  Unfortunately, if these documents are not prepared correctly, the client will not be there to see that their last wishes are not going to be upheld by the court.  Mary E. King, Esq., Law Office of Mary E. King, PL The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author.  It should not be relied upon as legal advice.  To speak with Attorney Mary E. King, please call (941) 906-7585 or visit www.kinglawpl.com. ... Read More