Frequently Asked Questions
Miami Probate Attorney
People may not know anything about
probate until they have lost a loved one. Depending on the decedent and their
estate, the process can be fairly simple, or extremely complicated. Below
are a few of the questions that clients frequently ask me in regards to
probate. If you have any other questions, please do not hesitate to contact
a Miami probate lawyer from my firm. I also serve clients in South Miami
and throughout Miami-Dade County.
Q: What is the difference between a specific bequest and a residuary bequest
A: A specific bequest gives the beneficiary either all or a fractional
interest to specific identified property. It is paid after lawful claims
and administrative costs - before the residuary bequest. If the specific
property is not in the estate at the time of death, the beneficiary takes
nothing. A residuary bequest gives the beneficiary everything that remains
in the estate after payment of lawful claims, administrative costs and
specific bequests. Unless provided otherwise in the will, claims and costs
are charged against the residuary bequest. If there is no devise of the
residuary assets, the residuary estate passes as provided by the intestate
Q: My daughter’s name changed, Can I write in her new name and initial it
A: Any writing on the will is not effective to make a change. Changes can
be made by adding a codicil to the will or making a new will.
Q: Should my will include provisions for disposition of my remains
A: Yes. To eliminate conflict, the will should specify the disposition
selected by you, or the person to have control in making arrangements.
Q: What is a testator or testatrix
A: A testatrix is a man who signs a will. A testatrix is a woman who signs a will.
Q: What happens if a beneficiary dies before me
A: If the beneficiary was a grandparent or a lineal descendant of a grandparent
of the maker of the will, then the devise will pass to the deceased beneficiary's
descendants per stripes unless there is a different disposition provided
in the will.
If the beneficiary was not a grandparent or lineal descendant of a grandparent
of the maker of the will, then the devise will fail unless a contrary
result is specified in the will.
Q: How can I revoke my will
A: An old will can be revoked by (1) making a new will which states the
old one is revoked, or by destroying the old will.
Q: What is a testamentary trust
A: A testamentary trust is one created in your will. It designates a trustee
to receive and manage certain assets and to distribute the income and
principal at future times as specified by you in the trust.
Q: Who should I name as my personal representative
A: You need a person who is honest, has the financial experience and skills
to manage your assets, is well organized, dependable and has the time
to devote to the job. It is best to avoid persons who have a conflict
of interest with other beneficiaries, major health problems which limit
ability, or impairments such as drug or alcohol addictions.
You may select any Florida resident without a felony conviction, relatives
without a felony conviction whether residing in Florida or not, or a financial
institution authorized to provide trust services in Florida. You may name
two parties to serve as co-personal representatives. You should also name
an alternate in case your first choice is unable to serve. It is best
to ask the person in advance if he or she is willing to serve.
Q: What does a personal representative do
A: Your personal representative is responsible for collecting and protecting
your assets, identifying and paying lawful debts, and distributing the
net estate to the parties and in the manner designated by you. The personal
representative selects the attorney, certified public accountant and other
professionals which may be required. To accomplish this the personal representative
will review your financial records and inventory your assets. The personal
representative will sign documents required for probate and tax returns.
The personal representative is entitled to compensation for these services.
A personal representative’s legal authority to act begins only after
the court has issued Letters of Administration in the probate proceeding.
Q: Who can I name as Personal Representative of my estate
A: You can name any person who is a Florida resident who has not been convicted
of a felony. You can name relatives to act as personal representative
even if they do not live in Florida. You can also name corporation authorized
to do business in Florida and provide trust services as your personal
Q: Can I disinherit my children
A: Yes, except minor children have a protected interest to any homestead
titled in the deceased parent’s name alone. The children will receive
the homestead after the surviving spouse, if any, dies.
Q: Can I disinherit my spouse in my will
A: Unless your spouse has signed a valid Nuptial Agreement waiving his
or her rights as a spouse, the surviving spouse can claim spousal rights
provided by Florida law. See elective share, exempt property and homestead
under probate questions.
Q: What is a personal representative
A: The personal representative is the person appointed by the court to
administer the estate. Their duties include hiring the attorney, collecting
all of the decedent’s assets, safeguarding the assets, notifying
creditors and interested persons of the estate, filing required tax returns,
payment of lawful debts, and distribution of the assets to the heirs.
Designation of a responsible person to carry out these duties can be done
in your will. In Florida, the personal representative must be either a
Florida resident, or a member of a statutory class of relatives or spouse
of such relative. The personal representative must also be 18 years or
older, mentally and physically able to perform his/her duties and not
convicted of a felony. (This is the person who will go through your sock
drawer as well as your files).
Q: My spouse and I have everything in joint names, so why would we need a will
A: If you died simultaneously in an accident with your spouse, each of
you would have an estate distributed under the intestate laws. Who would
be the personal representatives of your estates? If there are children,
who would be their guardians? Probably worse than simultaneous death,
would be one spouse surviving for a few hours. That surviving spouse would
be the sole owner of all assets which would pass to his/her heirs at law.
The heirs of the first to die would receive nothing. These problems could
be avoided with a will.
Q: When is a will not followed
A: 1) Only assets titled in the decedent’s name alone are distributed
by the will. Life insurance policies, IRA accounts, annuities and 401
(k) accounts payable to a beneficiary named in the document are paid to
the named beneficiary. Assets in joint names with right of survivorship
or held as tenants by entireties by a husband and wife, pass automatically
to the survivor. 2) If the original will was in the possession of the
decedent and cannot be produced, there is a rebuttable presumption that
it was destroyed with the intention of revoking it. If the presumption
is not rebutted, then the will is deemed revoked and not followed. 3)
You cannot disinherit a spouse without the spouse’s written consent.
A spouse may claim against the will for an elective share, exempt property,
family allowance and homestead. 4) If the will was signed before the marriage
to the decedent’s spouse, the law presumes there was no intent to
disinherit the spouse and allows the spouse to take the share he/she would
have received if the person died without a will. 5) There are other reasons
for which a will may be contested such as duress, fraud, lack of mental capacity.
A: A will or last will and testament is a document which names the personal
representative to administer the estate and directs the distribution of
property titled in decedent’s name alone. It has no legal effect
until admitted to probate by court after death of maker. Parents of minor
children can designate guardian of person and property for children in
the event no parent is surviving. You may also include provisions to defer
distribution to your children to more adult age than 18 years.
Q: Are handwritten wills valid in Florida
A: Florida does not recognize holographic (handwritten) wills unless they
meet the requirements for all valid wills, which is that the testator
sign the will in the presence of two witnesses who then sign the will
as witnesses in the presence of the testator and each other. Ideally,
in addition, wills should be self-proven with appropriate language and
notarization in order that the witnesses will not have to be located after
the testator's death.
Q: What is a trust
A: A trust is a separate legal entity under the law. It has a Grantor,
the person who creates the trust and transfers assets to it, the Trustee
who holds legal title to the assets and manages the assets in accordance
with the terms of the trust, and the Beneficiary or Beneficiaries, who
are the parties who receive the benefit of the assets as provided in the
trust instrument. There are several different types of trusts as explained
in other questions.
Q: When would a Irrevocable Intervivos Trust be used
A: An Irrevocable Intervivos Trust is general used as part of a plan to
reduce federal estate taxes. If you desired to make a substantial gift
to a minor child and have the gift removed from your taxable estate, an
Irrevocable Trust could be used. The minor child would have the option
to remove the principal upon age 21 years. The assets transferred would
be subject to the provisions of federal gift tax. Any appreciation in
value of assets after the transfer to the trust would not be subject to
gift or estate tax. It can be used in other manners to make a transfer
of a relatively small amount now to shelter appreciation in the future.
Q: When would a Revocable Intervivos Trust be used
A: If you wish to keep certain assets out of probate at your demise, transferring
them to the trustee of your intervivos revocable trust will avoid probate.
Since the assets are titled in the name of your trustee as trustee of
your trust, they are not part of the probate estate (but would be counted
as part of your estate for federal estate tax purposes). In the Revocable
Intervivos Trust, the maker would be the Grantor, and could also name
himself/herself to be the trustee, and name himself/herself to be the
sole beneficiary during lifetime. The trust would designate a successor
trustee to take over management upon the death or incapacity of the Grantor.
It would designate the beneficiaries to receive the assets after the Grantor has died.
Certain assets are not suitable for a revocable intervivos trust. Assets
in IRA accounts and 401k accounts, due to income tax provisions are not
suitable. If you transfer your principal Florida residence to a trustee,
you give up the “homestead” protection from creditors claims,
although with appropriate trust provisions, you may still apply for and
receive the “homestead exemption” benefit on property taxes.
Q: When would a Testamentary Trust be used
A: A testamentary trust is appropriate whenever you believe the beneficiary
may lack sound financial judgment (or their spouse lacks financial judgment).
It allows you to provide sound financial management through the trustee
and provide financial benefits to your beneficiary as you have specified.
A trust also allows you to have one person receive the income for a specified
period, or his life, and leave the principal assets to a different beneficiary.
You may wish to leave your spouse income for life on certain assets, and
have the principal go to your children or another beneficiary after your
spouse dies. By leaving your beneficiary income for life only, the principal
does not become a part of the income beneficiary’s taxable estate.
Q: What is the difference between and Revocable Trust and an Irrevocable Trust
A: A Revocable Trust can be amended and changed by the Grantor while the
Grantor is alive and has mental capacity. An Irrevocable Trust cannot
be amended or changed by the Grantor. Since the Grantor of a Revocable
Trust keeps substantial control over the trust, transfer of assets to
the revocable trust are not subject to gift tax, but the assets are included
in the Grantor’s estate for determining federal estate taxes. Assets
in a Revocable Trust are subject to claims of creditors.
An Irrevocable Trust is often prepared so that the Grantor does not retain
powers over the trust which would subject the assets to federal estate
taxes, but as such lifetime transfers would be counted, and possibly taxed,
under the gift tax regulations. If the Irrevocable Trust is prepared so
that the Grantor does not retain control, the assets are generally not
subject to the claims of the Grantor’s creditors.
Q: What is the difference between an Intervivos Trust and a Testamentary Trust
A: An Intervivos Trust is created and takes effect during the lifetime
of the Grantor. A Testamentary Trust is created to take effect and receive
assets after the death of the Grantor. A Testamentary Trust is generally
created as part of the Grantor’s Last Will and Testament.
Q: What is probate
A: A court procedure after the death of a person to determine the person’s
lawful heirs, appoint a personal representative to administer estate,
notify possible creditors, assure that lawful debts are paid, and that
property is distributed to proper persons. Disadvantages are delay, and
Q: How can I avoid probate
A: Setting up a revokable trust is a means to avoid probate. A trust is
recognized by law as a separate entity or person. The trustee holds title
to the property during your lifetime for your benefit. The terms of the
trust provide for its administration and distribution upon your demise.
Since you do not own the assets, there is no probate.
Q: My 10-year old son inherited $20,000. Can I receive the inheritance for him
A: It will be necessary for the parents to be appointed as guardian of
the property of the minor child by the court before distribution can be
made. In Miami-Dade County, Florida, it is customary for the court to
require the funds be placed in a frozen bank account until the child reaches
the age of 18.
Q: I am a beneficiary of an estate, What should I do
A: It is recommended that you consult with your own attorney since your
options to object to the will or personal representative are limited by
time. Your attorney can advise you on whether you’re eligible to
elect any other options. Depending upon the circumstances, you may want
the attorney to monitor the estate to insure that your interest is protected.
Q: How do I know if a probate case has been filed
A: You can check with the clerk of court, probate division, of the county
where the decedent was domiciled. In Miami-Dade County, Florida, you can
check online at miami-dadeclerk.com/civil/pubsearch.asp.
Q: Where is probate filed
A: Probate is filed in circuit court of the county and state where the
decedent was domiciled. If the decedent had no domicile in Florida, then
it can be filed in any county where the decedent owned property. If a
decedent owned property in different states, there would be a probate
administration in each state where property was owned.
Q: What is an elective share
A: The surviving spouse of a decedent who was domiciled in Florida at time
of death has the right to claim a share of the elective estate equal to
30 percent. There are time limits on when the surviving spouse must file
to claim the elective share. The definition of property subject to the
elective share is too lengthy to include here, it does apply to more than
the probate estate.
Q: What is a family allowance
A: If the decedent was domiciled in Florida at time of death the surviving
spouse and lineal descendants supported by the decedent (or entitled to
support from the decedent) are entitled to a reasonable amount, not to
exceed $18,000, for maintenance during estate proceedings in addition
to homestead, statutory entitlements, and share of estate (unless the
will provides otherwise).
Q: What is exempt property
A: If a decedent was domiciled in Florida at time of death, the surviving
spouse, or if none, the decedent’s children can have the following
property designated as exempt from creditor’s claims (excluding
perfected security interests) (1) $20,000 worth of household furniture,
furnishings, and appliances in decedent’s usual abode; (2) Two motor
vehicles held in decedent’s name and regularly used by decedent
and immediate family as personal automobiles; (3) Qualified tuition programs
under Sec. 529 of IRS code; (4) Certain death benefits for teachers and
school administrators under Florida Statute 112.1915. There is a time
limit in which to claim exempt property.
Q: What advantage does homestead property have
A: In addition to the restrictions on transferring the homestead at death,
the homestead owned by a natural person is exempt from forced sale by
creditors. It also receives an exemption from property taxes (presently
$50,000 in value) and a limit on increases in assessed value for property taxes.
Q: What property can be homestead
A: A residence occupied by the head of a household or his/her family in
Florida is limited in size to qualify for homestead treatment. Residences
located in a city or town can be comprised of one-half acre or less with
the residence on it. Outside of a town or city, the homestead property
can consist of up to 160 acres of land and the residence on it. A person,
or married couple, can have only 1 homestead.
Q: Who inherits my residence if it’s homestead
A: A residence owned by a Florida resident who is the head of a household
cannot be left by will when the deceased owner is survived by a spouse
and a minor child. The surviving spouse receives a life estate in the
property and upon death of the surviving spouse, the children of the deceased
title holder receive the property in equal shares. If the deceased owner
was survived by a spouse, but no minor children, the owner may provide
in his/her will that the surviving spouse receives all of the homestead.
If no provision is made in the will, then the surviving spouse receives
the life estate, remainder to the children. If the surviving spouse has
only a life estate he/she will not be able to mortgage or sell the property
without the consent of the children. To avoid these problems, many married
persons hold title to the homestead in both names as tenants by entirety,
so the surviving spouse receives the entire homestead upon the death of
Q: If I die without a will, who receives my property
A: Florida law provides that the decedent’s spouse receives (1) if
there are no surviving lineal descendants (child, grandchildren, etc.),
then the spouse receives the entire probate estate (assets in decedent’s
name alone); (2) if there are surviving lineal descendants who are also
lineal descendants of the surviving spouse, then the spouse receives the
first $60,000 and of the balance.(3) if there are surviving lineal descendants
who are not lineal descendants of the surviving spouse, then the spouse
receives half of the estate. The share of the estate not passing to the
surviving spouse, or if there is no spouse surviving, passes to (1) the
lineal descendants of the decedent, (2) if no lineal descendants, then
to the decedent’s mother and father equally, or the survivor of
them; (3) if there are none of the above, then to the decedent’s
brothers and sisters and the descendants of deceased brothers and sisters;
if there are none of the above, one-half each to the decedent’s
paternal and maternal kindred in the following order: a) To the grandfather
and grandmother equally, or the survivor; b) If there are no grandparents,
to uncles and aunts and descendants of deceased uncles and aunts of decedent;
c) If there is either no paternal kindred or material kindred, then to
the other surviving kindred in the above order. d) If there is no kindred
of either part, the whole estate passes to the kindred of the last deceased
spouse of the decedent as if the spouse had survived and then died intestate.
(4) See also questions on homestead, exempt property and family allowance
for special provisions in addition to above.
Q: How long does Florida probate take to finish
A: Unless there are complications or disputes, most nontaxable estates
take between four and six months for formal administration, but just a
matter of weeks for summary or family administration. Taxable estates
cannot close until the IRS signs off on the Estate Tax Return 706, which
has to be filed within nine months after the date of death and often takes
that long to prepare. Taxable estates are doing well to close in two years.
However, the work is primarily done in the first nine months of a taxable
estate, and the rest of the time is spent mainly waiting for IRS review
and approval to close the estate.
Q: Do I need a lawyer for Florida probate
A: Yes, in almost all cases. Except for disposition without administration
(very small estates) and those estates in which the executor (personal
representative) is the sole beneficiary, Florida law requires the assistance
of an attorney. Even when an attorney is not required, formal administration
has so many technical rules and pitfalls that it can be very frustrating
for the non-lawyer.
Q: How can I save on estate tax
A: By preparing an estate tax analysis, your attorney can recommend ways
to save tax with your estate planner.
Q: How much can I leave my spouse without paying the estate tax
A: So long as the bequest qualifies for the marital deduction, there is
no limit on the amount for U. S. citizens. Leaving all your estate to
your spouse may result in loss of tax breaks and a greater tax upon your
Q: When is a federal estate tax return required
A: For U. S. residents dying in 2011 or later, a federal estate tax return
must be filed when the fair market value of their gross estate equals
or exceeds $5 million.