FAQ

The cost to hire a Florida probate attorney depends on the type of administration, the size of the estate, and whether there are any out-of-the-ordinary issues to be addressed in the probate process.

Florida law allows for the payment of “reasonable compensation,” and sets forth a table of fees that will be presumed to be reasonable. These start at a $1,500 flat fee for estates valued at $40,000 or less and shift to a percentage-based formula for estates valued at more than $100,000.

However, the attorney and personal representative may agree to a different method of determining fees, so long as the method is reasonable and no interested party objects. And, services that fall outside the normal administration of an estate may result in additional fees. Your probate attorney will be able to provide more specific information about the likely fees associated with an estate matter like yours.

In most Florida probate cases, the Florida Rules of Civil Procedure require that the personal representative be represented by an attorney. This requirement is to the advantage of both the personal representative and the beneficiaries, since the probate process can be daunting and confusing. There are some limited exceptions, such as for estates in which the personal representative is the sole beneficiary. However, it is generally in the personal representative’s best interest to hire a probate attorney even when one is not required, as small mistakes can create serious complications.

Beneficiaries typically do not need their own probate attorneys, but may choose to hire one if conflicts arise or they have reason to believe that the personal representative is acting dishonestly or is not fulfilling his or her responsibilities.

A Florida probate attorney represents the personal representative in his or her capacity as administrator of the estate. This is an important qualification, as the probate attorney does not serve the personal representative in connection with any separate role he or she may play, such as beneficiary of the estate.

If you believe that you have reason to contest a loved one’s will, you will want to consult with an experienced estate litigation attorney as soon as possible, to ensure that you are prepared to move forward quickly.

Generally, the probate process is required to legally transfer property of the estate to beneficiaries. Under certain limited circumstances, though, Florida law allows for “disposition without administration.” This type of disposition is available only when the estate consists solely of personal property that falls within specific limits and the property is being release to the person who paid funeral expenses and medical expenses in the 60 days preceding the death.

Probate may also be avoided when the deceased made other provisions for all property to be transferred, such as placing everything he or she owned into a living trust so that there is no property belonging to the estate.

Florida law sets forth the order of priority for payment of estate obligations and distribution of assets, and there are quite a few expenses and other obligations to be paid before heirs and beneficiaries. Top priority goes to costs of administration and compensation to the personal representative and his or her attorney—in other words, the actual costs of getting the estate settled.

Funeral and burial expenses come next, followed by debts of the estate, which are broken out into several levels of priority.

Any reasonable funeral, interment, and grave marker expenses may be paid by the estate, up to an aggregate total of $6,000. These expenses may be paid directly or may be paid as reimbursement to any person who advanced the funds to cover the expenses.

Will contests based on allegations of undue influence are particularly difficult, since the influenced person is no longer available to testify or otherwise provide information, and the boundaries as to what constitutes undue influence are somewhat subjective. Thus, it is generally in your best interest to get guidance from an experience will contest lawyer.

All assets of the deceased are subject to probate unless other provision has been made. Some examples of assets that would not pass through probate would include a retirement account with a direct beneficiary listed, a bank account that is jointly held with rights of survivorship, or a life insurance policy with a listed beneficiary. Assets contained in a living trust do not pass through probate because they are property of the trust and not of the deceased.

While probate litigation is an adversary proceeding opened in an existing probate case, passing property through a trust doesn’t require involvement of the probate court. Thus,  challenging the validity or administration of a trust requires initiating a lawsuit.

You may not have all of the documents and information you need when you initially meet with your probate attorney, but the more you can assemble and bring with you to that meeting, the more quickly and smoothly you can begin to move the probate process forward.

Some important documents you should provide to your attorney include the death certificate, the will or trust documents, as complete a list of assets as you have been able to assemble, bank account information, retirement account information, and any life insurance policy. This list is not exhaustive, and it’s better to err on the side of over-inclusion, so if you are unsure whether certain documents will be useful or not, take them along and let the attorney determine which are needed.

The executor of an estate (called the “personal representative” in Florida) has the power to make decisions in furtherance of settling the estate and making distributions to heirs and beneficiaries. However, the personal representative must act in accordance with the terms of the will, with Florida law, and with any orders entered by the probate court.

If an interested party feels that the personal representative is not following the will or the law, or that the personal representative is not acting in the best interests of the estate, he or she may be able to challenge those actions in probate court, or petition to remove and replace the personal representative.

• Real property, such as houses and buildings
• Personal property, such as cars, stocks and bonds, bank accounts, mutual funds, cash, jewelry and furniture
• Life insurance, IRAs, pension benefits, and obligations or debts owed
• Businesses and business interests

1. Was the accused beneficiary present when the will was executed?
2. Was the accused beneficiary present when the deceased discussed his or her desire to make a will or create a trust, and his or her intentions regarding beneficiaries?
3. Was the attorney who drafted the will recommended by the accused beneficiary?
4. Did the accused beneficiary have knowledge of the contents of the will or trust prior to execution?
5. Did the accused beneficiary provide instructions to the attorney drafting the will or trust document?
6. Did the accused beneficiary recruit the witnesses to the will?
7. Was the accused beneficiary in possession of/responsible for safekeeping of the document after execution?

• Whether the accused beneficiary actively kept the deceased isolated and fostered alienation of family members
• The reasonableness of the terms, which is not alone sufficient to invalidate a will, but may be evidence of undue influence
• Mental disparity between the decedent and the accused beneficiary, such that the decedent could have been easily influenced

•  A caretaker on whom a sick or elderly person depends playing on that person’s fear of being neglected or left alone to convince him to change his will to benefit the caretaker
• One family member who is local running interference with the rest of the family to convince the vulnerable person that the influencer is the only one who cares about her and thus is the only one who should benefit from the estate

• A new “friend” who has suddenly taken on a prominent role in the life of an elderly or ailing relative
• Isolation, particularly if a caregiver or local family member discourages contact
• Financial changes, unusual loan requests, and other signs that a person may be suffering other forms of financial abuse
• Fearfulness, depression, and other changes that may suggest your loved one is being subjected to new stressors

• Receives a substantial benefit under the terms of the will or trust,
• Enjoyed a confidential relationship with the deceased; and
• Actively procured the will

An elder abuse lawyer helps vulnerable elderly people to protect themselves, and family members to protect their elderly loved ones. Exactly what action an elder abuse attorney will take depends on the type of abuse, who is perpetrating the abuse, and the elder’s circumstances.

For example, if an elder’s assets are at risk due to financial exploitation, Florida law provides for a temporary freeze to prevent a financial abuser from draining the elderly person’s resources while the victim, family members, or officials are investigating and taking appropriate action. During this time, the judge may also prohibit contact between the elderly person and the alleged exploiter. The injunction can be issued without notice to the abuser, and may remain in effect without a hearing for up to 15 days.

Of course, this is just one example of the type of protective action an elder abuse lawyer may take to protect a vulnerable person from exploitation. Every case is different. An experienced elder abuse attorney can explain the options and help determine the best course of action.

Florida law sets forth a long list of behaviors that constitute exploitation of an elderly person, including:

• Knowingly obtaining, using, or attempting to obtain or use the elderly person’s assets with the intent to deprive the elder of the use and benefit of the assets or to benefit someone else, if that act is committed by someone who is in a position of trust or has a business relationship with the elderly person;
• Commission of the same act by someone who knows or reasonably should know that the elder lacks the capacity to consent;
• Breach of any one of a number of fiduciary duties to an elderly person resulting in unauthorized appropriation, transfer, of sale of property;
• Misappropriation of funds from an account in which the elder placed the funds, owned the funds, and was the sole contributor or payee of the funds before the misappropriation; or
• A caregiver or person in a position of trust intentionally or negligently failing to effectively use an elderly person’s income and assets for the elder’s support and maintenance.

If you are uncertain whether your situation or your elderly loved one’s circumstances constitute financial exploitation, an experienced elder law attorney can be your best source of information.

Some of the most common types of elder financial exploitation involve family members or other caregivers siphoning off funds and other property belonging to the elderly person. This may involve an adult child using the elderly person’s funds for his own benefit without the elder’s knowledge, or an in-home caregiver removing small valuables from the home.

However, exploitive transactions don’t always happen behind the elder’s back. An unscrupulous family member or caregiver may exploit the elder’s confusion, isolation and dependence to deceive or intimidate him or her into signing over property.

Examples of exploitation by people other than caregivers and close family members include a “financial advisor” deceiving an elderly person into a fraudulent investment, a trustee using trust assets for the benefit of someone other than the intended beneficiary, or a “new friend” gaining the confidence of an elderly person who has suffered cognitive losses and persuading or deceiving the elder into giving him or her money and other property.

For purposes of the financial exploitation statute, Florida law defines an elderly person as one who is 60 years of age or older and is suffering from “the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.”

The same statute protects certain disabled adults, regardless of age.

Of course, if the elderly person has not been diagnosed with a specific condition, it may be difficult to determine whether he or she falls within this definition. An experienced elder law attorney will use information such as medical records and the testimony of those who have spent time with the elderly person to help establish limitations on his ability to adequately care for or protect himself.

Under Florida law, financial exploitation of the elderly as described above could be a felony. How serious the felony charge is will depend on the value of the property involved. While criminal prosecution of a financial abuser may cut off that person’s access to the victim, and perhaps provide for restitution, it typically occurs after significant damage has been done.

Civil action, such as filing for an injunction to prevent further dissipation of the elderly person’s property and restraining contact between the victim and the abuser often allows for swifter intervention and provides more effective protection for the elderly person.

Yes, a person may be criminally prosecuted and sentenced to jail for a variety of types of elder abuse, including financial exploitation of an elderly person. In fact, financial exploitation involving large sums of money or property with significant value can carry a prison sentence of up to 30 years.

However, it is important to remember that criminal prosecution occurs after a crime has been committed, which likely means that the vulnerable elderly person will already have suffered losses. An experienced elder abuse attorney can help you act earlier, to prevent further dissipation of the elder’s resources. Civil action does not preclude criminal prosecution. In fact, evidence collected to build a civil case may aid in prosecution of a financial abuser.

Florida law provides a relatively narrow window in which to contest a will. There is no mechanism for challenging a will during the testator’s lifetime, even if there are clear signs of mental incapacity, undue influence, or other grounds.

However, once the testator passes away, the process can move quickly. The notice of administration issued by the personal representative of the estate starts a 90-day timeline for contesting the will or the appointment of the personal representative. If a “formal notice” is issued, the time frame is shortened to just 20 days.

Twenty days is a very short period of time in which to secure legal advice and move your challenge forward, so it is in your best interest to seek counsel as soon as you recognize that a will contest may be required.

During your parents’ lifetime, you have no rights with regard to their will. A will has no legal effect until the testator passes away, and it is entirely up to each individual whether to share the terms of the will with family members and other beneficiaries during his or her lifetime.

Once the testator passes away, the will is submitted to probate and becomes a matter of public record. At that point, the executor of the will is required to serve notice on beneficiaries and certain other interested parties.

To discourage heirs and beneficiaries from delaying administration and potentially draining the estate with family disputes, some testators include a “no contest” provision in their wills. These provisions dictate that anyone who initiates a will contest and loses will receive nothing—even if the terms of the original will left that person a significant bequest.

Florida law, however, does not recognize no-contest provisions. If such a provision is included in a Florida will, the probate court will simply disregard it. Thus, a beneficiary who steps forward to contest the will is not at risk of being disinherited by a no-contest provision.

In Florida, a person must be at least 18 years of age and of sound mind to execute a valid will. But those aren’t the only requirements. In addition:

• A Florida will must be in writing—an attempted will may fail if the testator used another form, such as verbal statements or a recording, to make his or her wishes known
• A Florida will must be signed—even a written will may fail unless it was signed by the testator (or, under limited circumstances, by someone acting at his or her direction)
• A Florida will must be signed by two qualified witnesses—each witness must sign the will in the presence of the other witness and the testator

A Florida will may be deemed invalid because it wasn’t properly executed. Some failures in form are straightforward: for example, the will may be signed by only one witness, or may not be signed by witnesses at all.

Often, however, the alleged flaw is less clear. For instance, a family member may claim that the testator’s signature was forged, or that the witnesses signed at separate times and places rather than in the presence of one another.

If a loved one has died and you believe that the will was not properly executed, it is in your best interest to contact an estate litigation attorney as soon as possible. A lawyer who is experienced in handling will contests can advise you as to the likelihood of a successful challenge, and can explain the process and the resources required to contest the will.

Similarly, if you are the executor of or a beneficiary to a will that is being contested, contact an attorney as soon as possible to learn more about how you can defend the will and protect your interests and those of other named beneficiaries.

You may have heard that some wills are “self-proving.” While Florida law does allow for self-proving wills, the term is a bit misleading. A self-proving will is simply a will that is accompanied by an affidavit from the witnesses stating under oath that they signed the will as witnesses, and that they did so in the presence of one another and the testator.

A self-proving will can save time and effort, because in a straightforward, uncontested probate administration, the affidavit allows the personal representative to move forward without summoning one of the witnesses to establish that the will was properly and voluntarily executed. However, the affidavit—like any other testimony—can be challenged. In addition, some grounds for a will contest may not have been apparent to the witnesses.

So, while a self-proving will typically ease the burden of administration slightly, it does not render the will immune to contest.

There are two types of fraud that may form the basis for a will contest: fraudulent inducement and fraud in execution.

Fraudulent inducement occurs when someone employs fraud to influence the testator’s decisions about how to dispose of his or her estate. Fraud occurs when:

• The person makes false representations of material fact to the testator
• He or she knows that the representations are false
• He or she intends that the testator will act on the false information
• Injury occurs as a result of the deception

In the context of a will contest, the injury is typically that the testator makes a decision that he or she would not have made with accurate information, shifting assets away from anticipated beneficiaries.

Fraud in the execution of a will is more straightforward than fraudulent inducement. The victim of fraudulent inducement knows what the will is and what it contains, but has made decisions based on falsehoods. When fraud is employed in the execution of a will, the testator may believe that he or she is signing something other than a will. Or, the testator may know that the document being executed is a will, but believe that it says something different than it does.

Will contests based on duress are relatively uncommon, both because the level of conduct that supports a duress claim is unusual and because it can be very difficult to establish that a testator acted under duress once he or she is deceased. Although there are exceptions, duress is most likely to occur when the testator is isolated with and dependent on a relative or other caregiver.

Some examples of duress include threats of physical harm if the testator does not execute the will and withholding of care, food, medicine and other necessities.

A will may be properly executed and still deemed invalid. One of the most common will challenges involves a claim that the testator lacked the capacity to make a will. This often arises with regard to elderly testators or those who were already suffering a final illness when the will was created.

Capacity is determined on a case-by-case basis—the simple fact that the testator is of advanced age, is seriously ill, or even has been diagnosed with a condition that could potentially impact mental functioning won’t necessarily lead to a determination that the will is invalid. Rather, the court will look at the specific circumstances at the time the will was executed, including any medical condition, the impact of medications the testator may have been taking, and other factors.

Will contests based on incapacity typically rely on witness testimony, of both medical professionals and of those who had the opportunity to observe the testator at and near the time the will was created and signed.

The executor of a will is legally bound to dispose of assets as the law requires and the will dictates. That means paying taxes, debts of the estate, and costs of administration, and then distributing the remainder of the estate to the designated beneficiaries. Occasionally, an executor may decide not to play by the rules, or may simply not be competent to manage the estate as required.

Florida law protects beneficiaries from executor misconduct in a variety of ways, from reporting requirements to a process for removal of an executor who is not fulfilling his or her responsibilities. A local estate planning attorney can help assess the situation and determine the best approach under your specific circumstances.

Although wills and trusts are both tools people can use to pass property after death, they are entirely separate and one does not supersede the other. A will dictates how property belonging to the deceased will be distributed after his or her death. However, property that has been placed in trust is the property of the trust, not of the deceased.

A will and a trust may be used in combination. However, property that has been transferred into the trust and not transferred back out does not become part of the estate, and will be distributed according to the terms of the trust. Similarly, property that has not been transferred to the trust will pass through the deceased’s estate, whether under the terms of a will or intestate succession.

Every state calculates the spouse’s elective share a bit differently. In Florida, the surviving spouse is entitled to 30% of the “elective estate.” However, determining exactly what is and is not included in the elective estate and the value of those assets can be complicated.

For example, homestead property is included in the elective estate. But, how that property is valued for purposes of calculating the surviving spouse’s share of the estate depends on the legal interest the spouse receives and other factors. And, property may be counted toward the surviving spouse’s elective share even if that property is not part of the deceased’s estate.

A local estate attorney who is experienced in handling elective share matters can be the best source of information about what is and is not included in the elective estate and how value will be determined.

In Florida, a surviving spouse cannot be effectively disinherited. If the decedent does not leave behind a will or other provision for disposition of assets after his or her death, the Florida law of intestate succession directs all or part of the estate to the surviving spouse.

If the decedent has a will that leaves the spouse out, actively attempts to disinherit the spouse, or simply leaves the spouse less than the elective share under Florida law, the surviving spouse can simply opt for his or her elective share over the terms of the will.

An unmarried partner can inherit if the deceased leaves behind a will, trust, or other vehicle that names the partner as a beneficiary. However, an unmarried partner is not entitled to inherit through intestate succession when there is no will, and will not be entitled to an elective share.

Further, if the deceased partner was legally married to someone else at the time of his or her death, the surviving spouse’s elective share will take precedence over the terms of the will. Under those circumstances, the unmarried partner may receive less than the deceased intended, or even nothing.

The elective share is just one factor in determining how much the surviving spouse will inherit in Florida. For example, if there is no provision for disposition of the deceased’s assets, the surviving spouse will receive either the entire estate or half of the estate—more than he or she would receive through the elective share.

Alternatively, the deceased spouse may have bequeathed the surviving spouse the full estate, or some portion of the estate that is larger than the elective share.

If the surviving spouse chooses the elective share, he or she will receive 30%, though calculation of that share is not as straightforward and clear as the percentage makes it sound

It is also important to note that the surviving spouse—like any beneficiary—receives bequests from the estate based on the value of the estate remaining after debts of the estate, taxes, and costs of administration have been paid. Thus, 30% or 50% of the estate won’t be equal to 30% or 50% of the deceased spouse’s property. And, if the deceased left the surviving spouse a specific bequest, such as $250,000 rather than a share of the estate, the spouse will receive the full amount only if it remains available after expenses of the estate are paid.