FAQs About Probate

FAQs About Probate Law in Florida

Funeral Arrangements and Expenses

If not otherwise specified in a will, the surviving spouse or next of kin has a “legitimate claim of entitlement” to possession of the body of a deceased person for the purposes of burial and internment. This means that the decedent’s spouse, if surviving, and, if not, the next of kin has a right recognized by law to have, protect, and dispose of the remains of the deceased. This includes the right to make arrangements regarding burial plot, casket, etc., unless the decedent made previous arrangements in a will or other legal documentation.

The law allows for priority payment of the first $6,000 of funeral costs out of the estate in administration of the estate, so long as the costs are deemed “reasonable” (reasonable costs for a $20,000 estate will differ from reasonable costs of a $200,000 estate). In other words, when administering the estate, funeral costs are second only to the costs of the administration itself. The state does not limit funeral costs to $6,000, rather it only allows for the first of expenses to be given priority status in estate administration. Note that the Funeral Director may hold the individual who made the arrangements responsible for any cost over $6,000 if there is not enough money in the estate left to pay remaining funeral costs after other debts are paid.

Homestead, Exempt Property, and Allowances

Homestead: Under Florida probate law, the homestead of the decedent is exempt from creditor claims and taxation. However, there are many stipulations that are involved in determining what exactly the homestead entails-so many, in fact, that the Florida Appellate court calls the issue of homestead a “legal chameleon.” Because it is so difficult to comprehend the many facets of determining the homestead, a thorough discussion with the probate attorney handling the probate administration is necessary.

Exempt Property: In addition to the homestead, if the decedent was domiciled in Florida at the time of death, then the surviving spouse (or if no surviving spouse, the children of the decedent) is entitled to a portion of the decedent’s estate which is labeled by law as “exempt.” Interested persons will submit a “petition to exempt property” to the court which will include a list of furniture, furnishings, and appliances in the decedent’s usual place of abode with a net value of up to $10,000 (at the decedent’s time of death) that the interested persons would like to exempt. Along with all automobiles held in the decedent’s name and regularly used by the decedent or dependents of the decedent, this property will be exempt from all claims against it with the exception of perfected security interests held against the property.

Time Table: If the petition to exempt property is not filed on or before the later of the date that is four months after the date of service of the notice of administration or forty days after the date of the termination of any proceedings involving the construction, admission to probate, or validity of the will, it is assumed that the individuals entitled to exempt property have waived their rights to file.

Allowance: In addition to the homestead and additional exempt property, the law provides for an allowance to be paid out of the estate to the surviving spouse or lineal descendents that the decedent was supporting for maintenance during the estate administration proceedings. The allowance cannot exceed $18,000, and the court will determine whether the allowance will be administered in a lump sum or installments.

Problems with the Will

To determine whether the decedent had executed a will, it is important to conduct a diligent search. Generally, this information can be obtained from the family of the decedent. Most of the time, wills are kept with valuable papers or in a safe deposit box. If the decedent appointed a corporate personal representative, a representative from the corporation should have possession of or know the location of the original will. If the will is in possession of a third party, the keeper is responsible for submitting the will to the appropriate Florida probate court within ten days of the decedent’s death. The law provides that any beneficiary who is financially harmed by failure or refusal by the holder of the will to file can be awarded damages. Moreover, it is a criminal offense to intentionally withhold the filing of a will.

  • If there are two wills, the most recent will should be reviewed by a Florida provate attorney to determine whether all previous wills and codicils were revoked. If a more recent will is found during the probate of a will that is dated earlier than the will that was discovered and offered for probate, a petition may be submitted to revoke the proceedings that have already taken place, or, alternatively, to simply probate the most recent will.
  • In the case of a lost or destroyed will, it is usually assumed that the will was destroyed or revoked by the testator (the person who drew the last will and testament). At this point, photocopies of the executed will are crucial. The responsibility of proving that the intention of the decedent was not to destroy or revoke the will lies with the interested party, i.e. the proponent of the will. There are two ways in which an interested party can submit the terms of the lost or destroyed will to the Florida probate court:
    • With a “correct” copy of the will (a carbon or photocopy of the original) the will can be proved with the testimony of one disinterested witness.
    • Without a correct copy, the testimony of two disinterested witnesses is necessary to establish the specific terms.

Safe-Deposit Box: Access

Florida statutes permit the co-lessee of a decedent’s safe-deposit box access to the box even if the bank or financial institution where the box is located has been notified of the decedent’s death. Therefore, a complete inventory of the safe-deposit box should be taken as soon as possible because the co-lessee could empty the contents of the safe-deposit box. Further, a joint tenant to the safe-deposit box may remove contents before or after the death of a decedent if the safe-deposit box lease permits it.

Florida law permits the surviving lessee to inventory the safe-deposit box in the presence of the following: an employee of the bank, a Florida probate attorney, or the personal representative of the estate.

Prior to appointment of the personal representative, the bank must permit the spouse, parent, adult descendant, or the named personal representative to have access to the safe-deposit box for the purpose of examination and inventory. Also prior to appointment of the personal representative, the bank or financial institution where the safe-deposit box is located must deliver (1) the decedent’s will to the probate court in the county where the bank is located (2) the deed to the burial plot and/or burial instructions to the person making a request for the search and (3) any insurance policies on the decedent’s life to the beneficiary. No other contents can be removed without court order.

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