The Probate Process in Florida
The death of a loved one is often painful and comes with lots of questions. It can raise complicated legal issues about a family member’s estate and how it will be handled.
Assets need to be distributed, but where do you begin? Our Jacksonville probate attorney can help you through the complex process that follows the death of a loved one in Florida.
Probate is a court-supervised process for identifying and gathering the assets of a deceased person, paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then used to pay the decedent’s funeral expenses, the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. It is crucial to have an experienced Jacksonville probate attorney in your corner.
Our Jacksonville Probate Lawyers Are Here For You
At Douglas Law Firm, our attorneys guide clients through the probate process with experience and personal commitment. We understand how trying it can be to lose a loved one and we have a strong track record of helping people navigate the legal probate process. A Jacksonville probate attorney at our firm will take time to understand your unique situation and craft a personalized legal strategy accordingly.
Although the probate process is intended to efficiently settle an estate and distribute a deceased person’s assets according to his or her wishes, various legal questions and issues often arise along the way. At Douglas Law Firm, we have significant experience in Will challenges, breach of fiduciary duty allegations, real estate title complications, and questions regarding homestead property.
Probate Administration Explained by our Jacksonville Probate Attorney
Probate is a generally required court process for settling an estate in which a person dies with or without a Will and in situations involving certain types of Trusts.
A judge reviews a Will or Trust for legal sufficiency and uses the probate process to ensure that the deceased person’s (the “decedent’s”) assets have been identified and outstanding debts have been satisfied. The judge can also hear various challenges to the Will during this time.
The Florida Probate Process
- The process starts when a personal representative (the person identified in a Will as tasked with administering the estate) files a petition in court and gives notice to the beneficiaries.
- The personal representative must notify all interested parties of the petition, including family members and any known creditors.
- The personal representative must decide which creditor's claims are legitimate and pay those claims and any other final bills on the estate.
- The personal representative will petition for the transfer of remaining assets to the beneficiaries listed in the Will.
A Jacksonville probate attorney at our firm can help personal representatives ensure they complete these various legal responsibilities.
Florida law gives creditors as much as two years to file claims seeking payment from an estate, but the waiting period can often be shortened to 90 days.
Common Florida Probate Disputes
Probate litigation can arise over a wide range of disputes. These disputes concern the validity of a Will and other legal documents about a spouse’s rights.
It is important that anyone involved in these disputes obtain experienced legal counsel to ensure their rights are protected. A Jacksonville probate attorney at Douglas Law Firm can help protect you.
Contesting a Will or Trust
Contesting a Will or Trust is one of the most common probate disputes in which a Jacksonville probate attorney can provide legal guidance. In these situations, a person challenges the legal validity of the Will or Trust itself, arguing that it should not be used to settle the estate.
Wills and Trusts can be challenged on a number of grounds, often related to the circumstances under which the document was drafted and executed.
- Improper Execution: There are certain legal requirements necessary to execute a Will or Trust, including the presence of witnesses.
- Undue Influence: In these cases, a person alleges that another person took advantage of the testator (the person who made the Will) or grantor (the person who made the trust) to get a favorable inheritance.
- Incapacity: The testator or grantor must have a certain level of capacity at the time of the Will’s execution to understand what it is he or she is signing.
- Fraud, Forgery: Legal documents that are proven to be the product of misrepresentation are invalid and have no binding effect under Florida law.
These contests raise complicated factual and legal questions that require substantial evidence including witness testimony and ultimately are decided by a judge.
Jacksonville Probate Attorney for Breach of Fiduciary Duty
A personal representative or trustee has a fiduciary duty to act impartially and in the best interests of the estate, which includes duties to keep the relevant parties informed and to prudently administer the estate.
Beneficiaries have a legal right to enforce these duties by seeking the return of misappropriated assets and seeking removal of the personal representative. They can also force the personal representative or trustee to provide a financial document of the estate detailing the assets, obligations, and other information.
A Jacksonville probate attorney at Douglas Law Firm can help beneficiaries understand their rights and options.
Vague Language in Estate Planning Documents
Some disputes arise when a provision within a Will or Trust is vague or subject to multiple interpretations. Questions about how a document should be interpreted must be resolved in court.
When a person dies without a valid Will or Trust; a court may also be called on to help identify the person’s heirs.
Limited or Invalid Spousal Rights
A spouse cannot be “cut out” or disinherited by a Will under Florida law.
Unless there is a valid pre-or post-nuptial agreement, a spouse is entitled to at least an “elective share” of the estate. There are a variety of legal requirements for a spouse to enforce that right and to calculate the amount of the share, all of which your Florida probate attorney can advise about.
Jacksonville Probate Attorney for Real Estate Title Disputes
Property that is owned in full only by the decedent - rather than co-owned with a right of survivorship or with an identified beneficiary - is subject to the probate process.
Disputes can and do come up, particularly in scenarios where control over a bank account or other asset is changed shortly before a person’s death. Those transfers often raise questions when they conflict with the terms of a Will.
Contact Our Jacksonville Probate Attorney Today
Our offices are conveniently located in Palatka, Orange Park, St. Augustine, and Jacksonville. Contact us online or call 800-705-5457 to schedule a free initial consultation with an experienced Jacksonville probate attorney. Our lawyers are happy to meet with you at your home if you cannot travel to us.