Florida Probate Lawyers and Florida Probate Law
Tampa. Florida probate lawyers and attorneys represent heirs, personal representatives or executors, creditors of probate estates, and beneficiaries with the administration of probate estates in the Florida probate courts, trust estates, and trust administration, in Tampa, Hillsborough County, and throughout the State of
If you need an experienced Florida probate lawyer to represent you in a probate estate proceeding in Tampa, or Hillsborough County, Florida, please call the Tampa Probate Lawyer, toll free at 1-866-510-9099, or Contact Us.
Probate in Tampa, and Hillsborough County,
Our Florida probate attorneys, with over 30 years of experience in Florida's probate courts, can help you accomplish the results you want, consistent with Florida probate law.
The following frequently asked questions about the Florida Probate process should provide you with information about the administration of a probate estate in the Florida probate courts.
Florida Probate - Frequently Asked Questions
1. WHAT IS FLORIDA PROBATE?
2. WHAT ARE FLORIDA PROBATE ASSETS?
3. WHY IS FLORIDA PROBATE NECESSARY?
4. WHAT IS A LAST WILL AND TESTAMENT?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED IN A FLORIDA PROBATE?
8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND
WHAT DOES THE PERSONAL REPRESENTATIVE DO IN A FLORIDA PROBATE ADMINISTRATION?
10. WHO CAN BE A PERSONAL REPRESENTATIVE OF A FLORIDA PROBATE ESTATE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE OF A FLORIDA PROBATE ESTATE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE ASSETS?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE?
18. HOW LONG DOES FLORIDA PROBATE TAKE?
19. HOW ARE PROBATE FEES DETERMINED IN FLORIDA PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE LIVING TRUST?
1. Formal probate Administration, with which most of this information deals and
2. Summary Probate Administration
If you need an experienced probate lawyer to assist you with a probate located in Tampa, or Hillsborough County, Florida, please call us toll free at 866-510-9099.
Generally,
• a bank account in the sole individual name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset;
• a life insurance policy, annuity or individual retirement account (IRA) that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent's probate estate is a Florida probate asset;
• real estate titled in the sole individual name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is exempt Florida homestead) but Florida real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset;
• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but transfers automatically to the surviving spouse upon the death of the first spouse to die.
This list is not exclusive but is intended to be illustrative of the types of assets that are not probate assets.
(Back to the Top of Florida Probate FAQs)
3. WHY IS FLORIDA PROBATE NECESSARY?
Probate is necessary in
If you need the assistance of a Florida probate lawyer to represent you in the Florida probate court in Tampa, or Hillsborough County, Florida, please call us toll free at 1-866-510-9099.
(Back to the Top of Florida Probate FAQs)
A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by
To the extent a last will and testament properly devises probate assets and designates a personal representative of the Florida probate estate, the last will controls over the automatic provisions set forth under
If you need a qualified and experienced Florida probate lawyer to represent you in a probate proceeding pending in Tampa, or Hillsborough County, Florida, probate court, please call us toll free at 866-510-9099.
5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO LAST WILL AND TESTAMENT?
Contrary to the belief of some, the decedent’s probate assets are not turned over to the State of
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida probate estate assets.
• Surviving spouse and lineal descendants.
1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants are all the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the Florida probate estate, and the lineal descendants share the remaining half of the Florida probate estate.
2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the Florida probate assets and the lineal descendants share the remaining half of the Florida probate estate.
• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the Florida probate estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida probate law provides for further disposition if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions for Florida exempt homestead property, Florida exempt personal property, and a Florida statutory family allowance to the surviving spouse and any lineal descendants or ascendants who the decedent supported. Regarding Florida exempt homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the Florida exempt homestead, with the lineal descendants of the deceased spouse receiving the Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright. (Back to the Top of Florida Probate FAQs)
If you need a Florida probate attorney to assist you with the probate of an intestate estate in Tampa, Hillsborough County, Florida, please call us toll free at 1-866-510-9099.
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often involved in the Florida probate process:
• Clerk of the Circuit Court (See Question 7). The Circuit Court, and therefore the probate court for Tampa, Hillsborough County, Florida is located at: 801 East Twiggs Street, Tampa, FL 33602-3554,
(813) 276-8100
• Circuit Court (acting through a Circuit Court Probate Judge, See Question 8) in Hillsborough County, or the county in which the decedent was residing at the time of death.
• Personal Representative (See Questions 9 through 11) of the probate estate as either named in the last will and testament, or as appointed by the Florida probate court.
• Florida probate attorney for the Personal Representative (See Question 12). All court appointed personal representatives of probate estates in Florida must be represented by a Florida probate attorney or lawyer.
• Claimants (See Question 13), or creditors of the probate estate.
• Internal Revenue Service (IRS) (See Question 14). The IRS ensures that all apprpriate federal estate taxes (known as the "death tax") and federal income taxes are reported and paid.
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16), or other heirs who may have an inheritance from the decedent.
• Other Beneficiaries (See Question 17) of the Florida probate estate.
• Trustee of Revocable Trust (See Question 21), if the decedent established a revocable living trust prior to death. (Back to the Top of Florida Probate FAQs)
If you need a probate lawyer in Tampa, Florida, please call us toll free at 888-492-2468.
Probate papers are filed with the Clerk of the Circuit Court, Hillsborough County, in the probate court division, or in the county where the decedent lived. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the probate clerk for that probate estate administration. The probate clerk of court for Hillsborough County, Tampa, Florida, is located at: 801 East Twiggs Street, Tampa, FL 33602-3554, (813) 276-8100
(Back to the Top of Florida Probate FAQs)
A Circuit Court Judge , or probate judge, presides over Florida probate proceedings. The Florida probate judge appoints the personal representative and issues "letters of administration," also referred to simply as "letters." This probate form document shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate Judge also holds hearings when necessary and resolves all questions raised during the administration of the probate estate by entering written directions called "orders."
(Back to the Top of Florida Probate FAQs)
The personal representative is the person, bank or trust company appointed by the
The personal representative is directed by the
• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" legal probate form in a local newspaper, giving notice to probate creditors to file with the probate clerk claims and other probate forms and papers relating to the Florida probate estate.
• Serve a "notice of administration" on specific persons, giving information about the Florida probate estate administration and giving notice of requirements to file any objections or other probate forms with the Florida probate court relating to the probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors of the probate estate, and notify them of the time by which their claims and other probate forms must be filed with the probate clerk for the Florida probate court.
• Object to improper creditor claims and defend law suits brought on such creditor claims in the Florida probate court.
• Pay valid creditor claims from probate assets.
• File estate and income tax returns, including, if necessary the Federal Estate Tax Return (Form 706).
• Pay estate taxes and income taxes owed by the Florida probate estate.
• Employ necessary probate professionals to assist with the administration of the Florida probate estate, including appraisers, estate liquidation professionals, accountants and CPAs, and Florida probate attorneys and lawyers.
• Pay administrative expenses incurred in the administration of the Florida probate estate.
• Distribute statutory amounts or probate assets to the surviving spouse or family members from the probate estate.
• Distribute probate assets to probate beneficiaries identified in the last will and testament or the heirs who inherited probate estate assets through intestacy.
• Close the Florida probate administration when all of the creditor claims have been paid, all of the expenses of probate administration, including estate taxes and income taxes, and the heirs and beneficiaries have received all of the probate assets. (Back to the Top of Florida Probate FAQs)
If you need an experienced Florida probate lawyer to represent you as the personal representative of a Florida probate estate in Tampa, Hillsborough County, Florida, please call us toll free at 866-510-9099.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
• The personal representative of the Florida probate estate can be one or more individuals, a bank, or trust company, subject to certain restrictions.
• An individual who is either a resident of
• A trust company incorporated under the laws of
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
• If the decedent left a valid last will, the designated personal representative nominated in the last will has preference to serve as the personal representative of the Florida probate estate.
• If the decedent did not leave a valid last will, the surviving spouse has preference to be the personal representative of the Florida probate estate, with second preference to the person selected by a majority in interest of the heirs of the intestate estate. (Back to the Top of Florida Probate FAQs)
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
In almost all instances the personal representative of a Florida probate estate must be represented by a
The Florida probate attorney for the personal representative advises the personal representative on rights and duties under the
A provision in a last will and testament mandating that a particular Florida probate attorney, lawyer, or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative of the Florida probate estate. (Back to the Top of Florida Probate FAQs)
If you need a Florida probate lawyer to represent you as personal representative in a Tampa, or Hillsborough County, Florida probate proceeding, please call us toll free at 1-866-510-9099.
Prior to commencement of
The personal representative of the probate estate is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims against the probate estate. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the Florida probate estate until the claim has been satisfied or otherwise disposed of. (Back to the Top of Florida Probate FAQs)
If you need a Florida probate lawyer in the Tampa, Hillsborough County, Florida area to represent you as a creditor with a claim against a Florida probate estate, please call us toll free at 866-510-9099.
For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."
The personal representative of the Florida probate estate may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the probate estate:
• Final Form 1040 income tax return, reporting income for the decedent's final tax year.
• One or more Form 1041 income tax returns for the probate estate, reporting income for the probate estate.
• Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.
• Form 706 federal estate tax return, reporting the gross estate and deductions, and the amount of estate taxes due, depending upon the value of the gross estate.
The personal representative of the Florida probate estate may be required to file other tax returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).
The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estate tax closing letter is necessary to clear title to
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. A federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estate tax return is required to be filed with the IRS, then the personal representative of the probate estate is required to file a
Regarding
For Florida probate estates required to file a
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
Under
If you need an experienced Florida probate attorney to represent you as a beneficiary of a Florida probate estate, in Tampa, or Hillsborough County, Florida, please call us toll free at 866-510-9099.
For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate administration are due within 12 months of issuance of letters of administration by the probate court. This period can be extended by the Florida probate court, after notice to interested persons of the probate estate.
The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the Florida probate administration are due within 12 months from the date the federal estate tax return is due. This date is usually extended by the probate court because often the IRS' review and acceptance of the probate estate tax return are not completed within that period.
Florida probate estates that are not required to file a federal estate tax return and that do not involve probate litigation or estate litigation may often close in five or six months. (Back to the Top of Florida Probate FAQs)
The personal representative, the
The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament; (2) as set forth in a contract between the personal representative of the probate estate and the decedent; (3) as agreed among the personal representative and the heirs, beneficiaries, or other persons who bear the impact of the probate fee; (4) as the amount presumed to be reasonable as calculated under Florida probate law if the amount is not objected to; or (5) as determined by the Florida probate judge, applying Florida probate law.
Likewise, the probate legal fee for the Florida probate attorney or lawyer for the personal representative of the probate estate is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying Florida probate law. (Back to the Top of Florida Probate FAQs)
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Summary Probate Administration is generally available if the value of the probate assets owned by the probate estate subject to probate in
Under Summary Probate Administration, the heirs, beneficiaries, or other persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This claim period may be reduced in Summary Probate Administration by publication of notice in a local newspaper approved for legal advertising.
If you need a Florida probate lawyer to represent you in a probate summary administration, in Tampa, or Hillsborough County, Florida, please call us toll free at 866-510-9099.
Another alternative to Formal Probate Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by Florida law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.
If the decedent was not a
If the decedent created a revocable living trust, in certain circumstances, the trustee of the trust estate may be required to pay expenses of administration of the decedent's probate estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" probate form with the
If you need a Tampa, Florida probate attorney to represent you with regard to the administration of a revocable living trust, please call us at 866-510-9099.
This material represents general legal information about Florida probate law. Since Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an experienced
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