When an individual dies in Florida, the law instantly assumes that the title to all of that person’s property as well as the responsibility for his debts transfers to his “estate.” The “estate” literally is born at the exact same moment that the individual passes. Florida law creates this legal entity – the Estate of John Doe, Deceased – to insure that the individual’s property is protected and that there is a smooth transition of legal title, hopefully in accordance with the decedent’s wishes. It is important to note that probate only becomes necessary when a person dies with assets in his or her SOLE name and without a designated beneficiary. Some examples of assets that are not subject to probate are: life insurance policy with a spouse designated as beneficiary, bank account that pays on death to a child, real property owned jointly with right of survivorship.
If an individual dies with a will, then the first question is finding the document and insuring that it is valid under Florida law. Wills must be written under Florida law, for example. Mistakes in the document can mean that the decedent’s wishes will be ignored as the “intestacy statutes” take the place of a will when there is no Will or if the Will is found to be legally invalid or void. People should be extremely cautious in drafting documents, especially a will, from Internet sources. Sometimes a poorly drafted will is worse than not having one at all.
Under either the terms of the Last Will and Testament, or under the language of the Intestacy Statutes, a personal representative is then appointed to oversee the estate, and acts in a fiduciary role. Under the representative’s direction, the decedent’s property is accumulated and distributed, debts are paid, an accounting of what has occurred is finalized, and then the Estate is closed. The legal entity that Florida law created to assist in the transfer of property ceases to exist.
Probate is the court-administered process of distributing assets that did not have a pre-determined beneficiary and that were registered in the decedent’s sole name. Even if there are no assets subject to probate, the original Will and a death certificate need to be filed with the probate court in the county of residence. The trustee also needs to file a Notice of Trust with the court, if applicable.
Probate can be costly in both time and money. Proper estate planning bypasses the need for probate by using a trust or trusts and lifetime transfers of assets. This also provides for confidentiality of assets, as opposed to probate, which is a public process.
Federal estate tax reporting: Effective January 1, 2013, if the decedent’s gross estate exceeds $5,000,000 (indexed for inflation), then a United States Estate Tax Return, form 706, must be filed with the Internal Revenue Service. It is due 9 months after the decedent’s date of death. Whether an estate tax is due depends on many factors, among them are the nature of the assets, the estate planning done by the decedent prior to death, and the decedent’s marital status. The top marginal rate is 40%.
What information will an attorney need to administer an estate?
Your attorney will need:
- The decedent’s original will;
- At least two death certificates without the cause of death;
- Copies of bank statements for the month of the decedent’s death;
- Copies of brokerage statements for the month of the decedent’s death, including any certificates of deposits;
- Copies of any stock or bond certificates that the decedent may have held outside of a brokerage account;
- Copies of any general or limited partnership certificates or agreements;
- Copies of mutual fund accounts;
- Copies of deeds to real property, wherever situate;
- Copies of mortgages, mortgage notes and related amortization schedules;
- Copies of IRA, Keogh, pension and/or annuity plans and related account information;
- Life insurance policies;
- Past three (3) years’ 1040s;
- Copies of any gift tax returns (Forms 709) which have been filed, if any;
- Copies of any state income tax returns that may have been required to file for the past three years;
- Copies of certificates of title for any automobiles the decedent owned;
- List of all personal property the decedent owned including the estimated value;
- List of collectibles valued in excess of $3,000 and any insurance riders;
- Safe deposit box number(s), location and inventory of same;
- Name, telephone number and address of the decedent’s accountant;
- List of all pending lawsuits, if any, whether the decedent is the plaintiff or defendant;
- Any other evidence of assets the decedent owned not otherwise noted above.
Estate planning involves much more than writing a will. It involves life and family planning, as well as tax considerations. It also involves considerations involving custody and guardianship of minor children, special needs considerations and provisions for the care of the elderly, other than those writing the will, as well as for them.
There are certain ancillary documents that may often be more important than a will itself. These include:
- Durable powers of attorney
- Healthcare surrogate
- Living will
- Do not resuscitate
- HIPPA release
- List of personal property to pass free of probate
- Funeral and burial instructions
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Tampa, Florida 33618
Probate and Trust Admin
Biblical Estate Planning
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This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.