Florida: Everything You Need to Know

We provide our Florida clients Estate Planning, Probate, and Estate Litigation services that include:

• Wills and Estate Planning
• Asset Protection
• Estate and Inheritance Taxes
• Irrevocable Trusts
• Revocable Trusts
• Special Needs Planning
• Guardianships
• Probate
• Administration of Estates, Trusts, and Guardianships
• Will Contests & Will Challenges
• Estate Litigation

Every will must be in writing, and the testator must sign at the end of the document. If the testator is unable to sign the document his or herself, the document may be signed by another in the testator’s presence at the testator’s request.

The documents must be signed or acknowledged in the presence of two witnesses who must sign in the presence of each other and the presence of the testator.

Florida does accept self-proving wills. A self-proving will is a regular will but includes a page signed by the witnesses to the will. This page states that the witnesses attest to the signing and soundness of mind of the testator. The purpose of this page is to have the page and signatures be accepted as proof of the testator’s signature and state of mind rather than needing to find the witnesses and obtain their testimony upon the testator’s death. In Florida, the will may be made self-proving at the time it is signed or at anytime thereafter. The attestation of the witnesses for the self-proving will needs to be done in front of a notary in Florida.

In Florida, someone who is receiving something through the testator’s will or codicil can also be a witness to the signing of the will or any codicil to the will.

You can read more about Wills HERE.

You can make changes to, or revoke your will at any time. There are, however, some important rules to follow.

One way to change your will is to make a codicil, which is an amendment to your will. Another way is to make an entirely new will which revokes and takes precedence over any and all older wills.

A codicil is a separate document and must be signed and witnessed the same as a regular will, or it will not be honored. Because of these requirements, it is easier just to make a whole new will.

It is important not to make any markings on your will once it has been witnessed and signed. This is absolutely vital. If you cross out a name or add any other writings to a will that has already been signed, you risk making the whole will invalid.

To revoke a will without making a new one all you have to do is intentionally tear it up, deface it, or otherwise destroy it. If this occurs accidentally, you will is not invalidated.

It is important to remember that in Florida if you intentionally revoke a will by tearing it up or destroying it, it also automatically revokes all codicils associated with that will. This act will not automatically revive past wills you may have written; instead, it leaves you with no will until you properly execute a new one.

You can read more about Wills HERE

In Florida, a will and its codicils are not invalidated or revoked because of a later marriage or birth of a child. In such a case the surviving spouse and/or child will be entitled to the appropriate share as though the testator died intestate (see above). This is true unless the will and/or codicil shows that the spouse and/or child was intentionally excluded from the will and/or codicil.

Learn more about the essential legal documents for life’s big transitions HERE

Certainly! Though same-sex marriage is accepted law, there are still concerns unique to the LGBT community. Historical prejudice and existing hostility both political and familial adds a layer of complication other couples need not address. Please read my article about Florida LGBT Estate Planning.

Foreign wills (wills executed in a state other than Florida) will be recognized by the state of Florida as valid if the will is valid under the laws of the state where it was executed.

Depending on who it is you wish to disinherit, the answer varies.

In Florida, you may leave your spouse out of your will, but unless you have signed a valid prenuptial or postnuptial agreement your spouse will be entitled to what is called the “elective share”. In Florida the spouse would be entitled to 30% of your estate through this elective share. If your spouse is going to take an elective share of your estate this request must be filed within 6 months of the date of service of a copy of the notice of administration or within 2 years after the date the decedent died. This request must be filed with the county where the estate is probated.

In Florida you may disinherit your children or any other relatives. To ensure that it is clear that you are intentionally disinheriting an individual it helps to state this in your will so there can be no question about what you intended.

When dying without a will, you are “intestate.” This means that the state, not you, decides how your property is to be distributed. Florida’s rules for intestate succession say that your property will be distributed in the following manner:

If your spouse survives you, your spouse receives:

• All of your property if you leave no children
• $60,000.00 plus 1/2 of your remaining estate if you leave children that you had with that surviving spouse
• 1/2 of your estate if you leave children that you had with someone other than that surviving spouse

If you have no surviving spouse or all property is not given to your surviving spouse is distributed to the following persons:

• Your children in equal shares, or if you have none, to their issue, or if you have none;
• Your parents, or if you have none;
• Your brothers and sisters, or if you have none living, their children, or if you have none;
• Your grandparents (1/2 to your father’s side and 1/2 to your mother’s side), or if you have none, their children (i.e. your uncles and aunts), or if you have none.
• The kindred of your last deceased spouse, or if you have none,
• The State of Florida

Probate in Florida refers to the process where the State of Florida recognizes the Personal Representative or Administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate process provides the rules and oversight of that process. For a Florida estate, the initial step is to have the will recognized as valid by the Surrogate of the county where the deceased was a resident. For example, if the deceased was a resident of Palm Beach County, the will is filed with the Palm Beach County Surrogate. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the Surrogate accepts the petition for probate, then paperwork is given to the Personal Representative or Administrator authorizing them to represent the estate. Probate has begun.

You can read more about Probate Here.

The will is registered with the Surrogate of the county that the deceased was a resident. For example, if the deceased died a Naples, Florida resident the will is probated with the Collier County Surrogate.

Our experienced Probate teams can make arrangements for you to be sworn in as Personal Representative outside of Florida. In most cases, we can make arrangements so that you will never have to come to Florida at all. Because we focus our practice on Probate matters, we can help make the probate process as easy for you as possible.

There is no set time limit for an estate’s probate. As explained below, I often tell Personal Representatives to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the Personal Representative look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid. Florida’s Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate.

Here are a few common examples of tasks that will force an estate to stay open longer than others:

The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. In Florida, this will mean at a minimum filing a final 1040. You may not be able to file these returns until the year following the death.

The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS. Once filed, it can take months to determine if the return has been accepted as filed.

Sale of Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over 6 months. Specialized property, such as commercial property or a farm can take even longer.

Creditor Claims: Creditors of a Florida estate can bring their claims and the Personal Representative must deal with the claims. If the Personal Representative releases the estate’s funds to beneficiaries, and a legitimate creditor is discovered, the Personal Representative might be personally liable to the creditor if the estate funds cannot be recovered from the beneficiaries. Most Personal Representatives find it wise to hold the estate assets until the date for creditor claims has past.

If a Florida resident dies without a will, the estate assets will pass according to the Florida Rules of Intestacy. The Probate Lawyer will then file a different petition with the Surrogate to have an Administrator named, rather than a Personal Representative. The rules that cover who can serve as Administrator are rather complex, so if you have a relative who died without a will in Florida, feel free to contact us to help explain the process.

Once a probate petition is accepted, the Personal Representative or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. A Florida estate must make certain reports to the Surrogate, which differs from the reporting for a Philadelphia estate’s reports to the Philadelphia Register of Wills. Strangely, even within a state the various reporting standards may differ.

A Probate Attorney versed in the rules of Florida probate can advise the Personal Representative on these reports. In the end, before distributing any funds, the Personal Representative should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the Personal Representative can be forced to return to court years later and account.

As Florida Probate Attorneys, we regularly represent Personal Representatives, administrators and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.

A Personal Representative’s accounting is the report of the Personal Representative’s financial actions from the date the Personal Representative began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the Personal Representative plans to distribute the assets to the beneficiaries. In Florida, these accountings can either be informal accountings or formal accountings.

You can learn more about Accountings Here.

The Personal Representative should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the Personal Representative unless the Personal Representative can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the Personal Representative will need to provide an “accounting” of the assets and expenses.

In Florida, the heirs can force the Personal Representative to account by filing a Petition. If they satisfy the judge, an order to account is issued.

If the numbers do not add up, the Personal Representative maybe found personally responsible for any shortfall. The court can “surcharge” the Personal Representative for the difference.

You can learn more about Surcharge Actions Here.

When filing an accounting, the Court requires the account to follow a specific format. The accounting must also be submitted with a specific petition. Further, accountings and the accompanying petitions may vary from County to County within Florida. An experienced Probate Attorney who focuses in accountings is familiar with these differences. It is better to provide the Court a Petition in the correct format, rather than having the judge find it incomplete and order the Petition refilled.

At times a Personal Representative may refuse to provide a beneficiary with an acceptable accounting. The Court has created a system that allows a beneficiary to force the Personal Representative to provide an accounting. Our firm has been forcing Personal Representatives to file Accountings for over 20 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.

It is important that all tax returns are filed correctly and in a timely fashion. The Personal Representative or Administrator is Personally Liable for errors that harm the beneficiaries. Filing a late tax return means interest and penalties for which the Personal Representative may be personally liable. When a Personal Representative hires a Probate Attorney that Lawyer’s primary job is to advise and protect the Personal Representative. Probate Lawyers are well versed in preparing all estate related tax returns and can help make sure all returns are filed correctly and timely. In Florida a Personal Representative may have to file the following returns:

• The Deceased’s final Form 1040 (Income tax)
• The Deceased’s final Form PA40 (Income tax)
• The Form 706 (Estate Tax)
• The Form 1041 (Estate’s income tax)
• The Form 709 (Gift Tax)
• Payroll Taxes
• Specialized Taxes that the Deceased’s business might owe.

If you have the original will and an original death certificate, our firm can set up a process where you are sworn in as Personal Representative in your home county. There is no “reading of the will” required, so for most estates our clients never have to come to Florida.