Articles Posted in Probate

If you have lost a loved one, this Complete Guide to Florida Probate will help you understand the steps required to receive your inheritance. “Probate” is the legal process to transfer property from a deceased person to the living people who are legally entitled to receive it. The 2021 Florida Probate Rules, documented here, determine who may receive inheritances in Florida. This guide explains the entire probate process in Florida including: (1) which assets are required to go through probate, (2) who is entitled to receive those assets, and (3) what steps are required to transfer those assets. To get answers to specific questions about your Florida probate case, click here, or call (352) 354-2654.

Table of Contents – The Complete Guide to Florida Probate

  1. What is Probate?

A Gainesville FL probate attorney with our firm can answer questions about the estate administration process, call today – (352) 354-2654.

Probate is the process of transferring ownership of a deceased person’s belongings and assets to those people entitled to receive them under Florida law. In a probate case, a judge determines who is entitled to benefit from a decedent’s “estate.” An estate is simply everything a decedent owned when they died. If the deceased person had a will, that document will determine who receives what share of the estate. If the decedent died without a will (intestate), the estate will go to the decedent’s closest relatives (see “intestate succession” rules here).

In Florida, there are two different types of probate; formal administration and summary administration.

Bo Diddley
Bo Diddley was an American music icon that inspired the likes of the Beatles and the Rolling Stones. While Bo’s original sound left an indelible mark on contemporary music, he struggled to find mainstream recognition for his contributions during his lifetime, sometimes feeling victimized by the 1950’s record companies that embraced his style but repackaged it for white audiences. Rolling Stone has written about Bo being copied by the King himself, and the Smithsonian proclaims that “Bo Diddley’s beat changed the course of rock music.”

His pioneering sound led Bo to become the first black artist featured on the Ed Sullivan Show in 1955, where he defied executives and played an original song instead of the cover song they had slated for him.

Bo was never invited back to the Ed Sullivan show but continued to rule the stage until suffering a stroke in 2007. Bo passed away in 2008 at the age of 79 leaving a big family and even bigger legacy. While not always recognized as an originator of rock music, his heavy influence on the genre is undeniable. What Bo may lack in name recognition he more than made up for in boldness and originality.

Boy with Broken Arm
Florida courts have recently become strict regarding the enforcement of court approval requirements for global settlements involving minors in Florida. At Florida Probate Law Group, we make sure probate and guardianship issues do not delay settlements for injury firms. Most injury attorneys know that a child injury settlement over fifteen thousand dollars triggers Florida’s complex court approval statutory scheme (see our flowchart here). However, many are unaware that ANY settlement benefiting a child, no matter the value, requires court approval when paid as part of a global settlement with a total gross value of fifty-thousand dollars ($50,000.00) or more.

Allen v. Montalvan

As explained by Florida’s 4th DCA in Allen v. Montalvan, Florida’s statutory scheme regarding court approval of child settlements is activated when a total global settlement reaches the threshold of $50,000.00, regardless of the amount apportioned to the minor:

In a previous blog article, I opined on the importance of identifying and signing up the future personal representative of a decedent’s estate when accepting a wrongful death case. However, you may find yourself in a position where the future personal representative has retained another firm, while a separate survivor entitled to damages seeks to hire your firm as their individual counsel. Such a case, while not ideal, could nonetheless be profitable.

PieWhile Florida’s Wrongful Death Act does not allow individual survivors to file separate wrongful death actions (only the personal representative has authority to file), Florida case law provides a right for individual survivors to hire separate counsel, and entitles that outside attorney to be compensated from the settlement based on their contribution to the prize. Wiggins v. Estate of Wright, 850 So. 2d 444, 446 (Fla. 2003);Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011).

The above cited cases state that when survivors hire separate attorneys, they lose “commonality of interest,” and each attorney may be entitled to a separate fee. Under Wagner, “in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each.”

Orange and AppleOur firm is sometimes brought into a case after another probate/guardianship firm has begun the estate administration or guardianship process, but has not been able to competently usher a settlement through the various obstacles associated with child injury and wrongful death cases in Florida. I have been shocked by “normal” probate attorneys neglecting to protect the interests of plaintiff’s firms, despite the work of the plaintiff’s firms to create windfall settlements benefiting the estate or injured child. Probate firms with practices comprised of mostly non-settlement related cases may not have the requisite knowledge of Florida’s statutory settlement schemes and related case law to:

  1. Protect settlements from creditors
  2. Ensure efficient settlement approval

HouseFlorida law protects “homestead” property from creditors both during the owner’s lifetime and after their death. Article X section IV of the Florida Constitution provides that individuals may own on piece of real property within the state immune from forced sale. This protection inures to the heirs of the property owner, effectively protecting a piece of family property indefinitely for future generations. To qualify for this exemption, the parcel, if located within city limits, must be no larger than one half acre. Outside of a municipality, the parcel may be as large as 160 acres.

While the homestead exemption is an extremely strong form of asset protection, it does not apply to taxes, mortgages, or construction liens. If the property owner has a spouse or minor children, the property cannot be devised (given away in a will) except to the spouse and then, only if the owner has no minor children outside the marriage. A property need not be designated as “homestead” for tax purposes the fall under the umbrella of constitutional protection.

In probate proceedings, we submit a pleading to the court titled “Petition for Determination of Homestead Status,” which, when signed by the circuit judge, gives notice to all that the property is off limits to creditors and simultaneously transfers title to the lawful recipients to the property.

Florida Probate Law Group has facilitated millions of dollars in wrongful death and child injury settlements. Why do injury attorneys turn to us to handle these important issues?

Protecting Client Funds

We are experienced in defeating liens and claims in wrongful death cases. Sometimes, plaintiff’s attorneys ask us “are you sure this is legal?” the first time we neutralize a five or six figure threat to a pending settlement. We assure you it is not only legal, but part of our professional and ethical responsibility towards the settlement recipient. Read more about that process here.

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