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Florida Probate Basics

When a person dies, the family generally has to hire an attorney who can then “probate” the Deceased person’s estate. Probate is the process whereby assets are transferred from the Decedent to the Decedent's beneficiaries or heirs. At the Law Offices of Stephen K. Miller, our experienced attorneys have years of experience dealing with estates and probate procedures, and are ready and willing to help you navigate the stormy seas of the Florida Probate Code.

In Florida, when a person dies, a legal entity comes into existence for the sole purpose of collecting that person’s property and money and giving it to the proper individual(s). The person who died is called the “Decedent,” and the legal entity that springs into existence when the Decedent dies is called the “estate.” Generally, the estate will give away (“distribute”) the Decedent’s property according to the Decedent’s will, if one exists. If there is a will, the estate is “Testate” and the decedent is the “Testator.” If there is no will, Florida law has default rules that will govern the distribution of the Decedent’s property. The process through which the property is distributed is called “probate.” In essence, if you don’t write a will, your assets will be distributed to those individuals set forth in Florida law.

Florida law allows Testators great liberty in writing wills. Generally, a Testator can give away his property in almost any way, shape, or form that the Testator desires. However, Florida law has some default rules that are difficult to bypass—if the Testator does not have an experienced attorney who can write the will, the Testator may write a will that is invalid. In addition, certain classes of people, such as the surviving spouse, are entitled to protection under Florida law regardless of what the Will directs. For example, the elective share and the family allowance provide protection to a surviving spouse even if the spouse is specifically disinherited in the Decedent's Will.

The surviving spouse’s elective share (section 732.201 of the Florida Statutes) is an amount equal to 30% of the Decedent’s elective estate. The elective estate is essentially all of the Decedent’s property, including many specific types of property but excluding other types of property. It is called the “elective share” because the surviving spouse can choose (“elect”) to take the elective share, or simply take whatever property the Decedent left the spouse under either the decedent’s will or pursuant to Florida intestacy law.

The family allowance (section 732.403 of the Florida Statutes) is “a reasonable allowance in money” from the estate of the deceased family member, and can be up to $18,000. The estate must pay the allowance to the surviving spouse, or to the surviving spouse and any guardians of dependent lineal heirs.

The common theme between these two laws is that the laws require the estate to pay money to a surviving spouse. If the Decedent had wanted to give more money to his children, grandchildren, parents, charity, or to anyone else, the Decedent is limited by the amount he must pay to his surviving spouse. This problem can be especially burdensome when the Decedent’s children are adults and the surviving spouse is not the biological parent of the Decedent's children.

It is important to carefully plan for your estate to avoid potential unintended problems. At the Law Offices of Stephen K. Miller, our attorneys have years of experience writing wills, administering estates after a Decedent dies and dealing with other complex family law issues.

In addition to probate issues, our firm also takes on cases involving divorce, custody battles, relocations, domestic violence injunctions, wills, criminal defense, personal injury, medical malpractice, and wrongful death cases. Our firm has offices in Gainesville, Ocala, Chiefland, Lake City, Palatka, Jacksonville, Daytona, Palm Coast, St. Augustine, Orlando, Kissimmee, Lake Mary, and Melbourne.

For help with your legal issue, contact the Law Offices of Stephen K. Miller for a free phone consultation at (866) 496-8752 or via email at Info@ForYourLaw.com

By: Stephanie N. Mack, Board Certified Attorney in Marital & Family Law

June 25, 2012
 
 
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