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Florida Probate Attorney & Estate Administration Lawyer

Protecting Your Assets

Probate Lawyer in Daytona Beach

Probate is the court supervised process in which a deceased person’s assets are transferred to the beneficiaries listed in his or her will.
The entire probate process can be very complicated and frustrating for individuals who do not know what to expect and are unaccustomed to fulfilling their obligations.
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Florida probate attorney Thomas Upchurch and staff will assist you in tracking down all the estate assets, giving notice to creditors, dealing with creditors and the distribution of assets to the proper beneficiaries.

Thomas Upchurch services the entire Central Florida and North Florida areas including Daytona Beach, Jacksonville, Port Orange, Deland, Ormond Beach, Palm Coast, Orlando, Saint Augustine and New Smyrna Beach.

What is the Role of the Personal Representative?

In most cases, the personal representative named in the will opens the estate by filing a petition in court seeking appointment, however, in Florida, the petition may be filed by “any interested person.”

After being appointed by the court, the personal representative will then take possession of your assets.

They have a number of responsibilities which include paying off the estate’s debts and with court approval, distributing the rest of the estate assets to the beneficiaries. If you have been appointed as a personal representative and need assistance in proceeding forward, a Florida probate attorney can assist and help guide you through the entire process.

We can assist your probate needs in the following areas:

Frequently Asked Questions (FAQs) about Florida Probate

The probate process can be a daunting and confusing for people especially when they don’t know what to expect. Add that for many people the probate process occurs during a highly emotional time and there may be many questions regarding your rights, responsibilities and what to expect.

Here we’ve compiled the most commonly asked questions we see and receive from people in need of probate or a Florida probate attorney:

What is the role of a Florida probate attorney?

The job of a Florida probate attorney is to guide the personal representative (also sometimes described as the executor or administrator) through administration of the estate, helping ensure that all technical requirements are met and that the personal representative understands and has the information necessary to carry out his or her responsibilities.

How much does it cost to hire a probate attorney?

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.

How long does probate take?

How long probate takes varies depending on the type of administration and the complexity of the estate. The probate process always takes more than three months, because creditors are allowed 90 days to submit claims. A summary administration—that is, a small estate that is administered informally—may often be completed in four to six months. However, formal administration typically takes several months, and often more than a year. In a particularly complex administration or where issues such as will contests and contests over valuation of property arise, the matter can stretch out for two years or more.

Do I need a Florida probate attorney?

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.

Can probate fees be paid from the estate?

Yes. In fact, costs of administering the estate are the number one priority under Florida law, meaning that they are paid before any other debts or obligations of the estate, and before any assets are distributed to heirs or beneficiaries.

How does a probate attorney/lawyer get paid?

The probate attorney’s fees are paid by the estate. The personal representative may pay reasonable attorney fees from the estate assets without a court order.

Who does a probate attorney represent?

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.

How do you settle an estate without probate?

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.

Who gets paid first from an 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.

What funeral expenses can be paid by an estate?

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.

What assets are subject to probate?

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.

What do I need to bring to a probate lawyer?

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.

Does the executor have the final say?

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.

Can the executor of the estate take everything?

The personal representative, also known as the executor in some states, is bound to manage the estate in accordance with the terms of the will or, in the absence of a will, the laws of intestate succession. Florida law creates a strict hierarchy for payment of expenses and debts of the estate before assets are distributed to beneficiaries, and an interested party who believes the personal representative is misdirecting assets has recourse through the probate court or, in some cases, through a separate lawsuit against the personal representative.

What debts are forgiven at death?

While any creditor is of course free to forgive a debt when the person who owes the money dies, debts are not forgiven by operation of law, and forgiving debts is not standard practice for most creditors. The estate will typically be responsible for debts remaining at death. However, in most cases, heirs and beneficiaries are not responsible for debts of the decedent. If there are not sufficient assets in the estate to cover outstanding debts, the lower priority debts will go unpaid and creditors cannot pursue family members for payment unless they were obligated on the debt, such as having co-signed for the loan.

Can property be sold during probate?

Yes. It is often necessary for the personal representative to sell property during probate, in order to convert assets to cash to pay costs of administration, debts of the estate, and to make distributions that don’t involve the direct transfer of property. In most cases, the personal representative can take this action on behalf of the estate, without a court order. However, there are limitations on certain types of transfers, such as sales to interested parties and the transfer of certain real property. A probate attorney can assist in understanding which property will require special measures before sale.

Do bank accounts have to go through probate?

Whether or not a bank account passes through probate depends on how the account was held at the time of death. For instance, a bank account that is owned by a living trust will remain property of the trust, and management of the account will pass to the successor trustee. A bank account that is jointly held with rights of survivorship will pass to the co-holder without having to pass through probate. But, any property of the deceased that does not pass through another legal channel like the ones described above must be transferred through the probate process.

Do executors have to give an accounting to beneficiaries?

The personal representative is required to file various inventories and accountings with the probate court, and beneficiaries have a right to obtain and review these reports. In addition, beneficiaries have the right to request that the court order the personal representative to provide an interim accounting during probate. And, beneficiaries may request further explanation of some aspects of probate reporting, such as how the personal representative arrived at valuation of assets.

Can the executor of the estate be sued?

Under certain circumstances, an “interested party” may sue the personal representative of an estate.  In fact, a will provision relieving the personal representative of personal liability will be deemed invalid if it excuses the personal representative from legal responsibility for breach of fiduciary duty committed in bad faith or with reckless indifference. However, personal representatives enjoy some legal protection from liability. For instance, a personal representative is not liable for any action taken with leave of the court. If you are the beneficiary of an estate and believe that the personal representative has failed to fulfill his or her duties and you have been harmed or are being harmed by that failure, consult a local probate attorney about your options as soon as possible.

How long after a person dies does the estate have to be settled?

There is no specific time limit for settling an estate, though probate courts favor efficient administration. If you are the beneficiary of an estate that has stalled, you may be able to ask the court to enter an order creating deadlines for completion of certain tasks or phases of the estate administration. However, be aware that what seems like a long time for a beneficiary awaiting an inheritance isn’t necessarily an unreasonable time in terms of a probate proceeding. While small estates can often be wrapped up in a matter of months, some estates are in probate for more than a year.