Ann Arbor Real Estate Attorney

Florida Probate Court Information

1. What is Probate?

Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries. In most Florida counties, the probate system is conducted in a specialized probate division of the Circuit Court, under the oversight of one or more probate judges.

2. How is Probate Initiated?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as Personal Representative, also known as the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition for Administration.

3. Who is Eligible to Serve as Personal Representative?

A bank or trust company operating in Florida, any individual who is resident in Florida, and a spouse or close relative who is not necessarily resident in Florida are all eligible to serve as the Personal Representative. Nonrelatives who are not resident in Florida are not eligible to serve as Personal Representative.

4. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, the person chosen by a majority of the beneficiaries in interest of the estate shall choose the Personal Representative. If there is no will, Florida law provides that the surviving spouse may serve, or, if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest shall serve.

5. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate estate to retain a Florida probate attorney. Although the Florida probate forms are available to the public, these are of no use to a non attorney.

6. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal Representative, based on a
1000
percentage of the assets of the probate estate.

7. Is the Family of a Deceased Person Entitled to a Portion of the Estate?

Florida law provides for a family allowance for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, thirty percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Florida resident is entitled to disinherit adult children, for any or no reason. Of course, if it can be shown that the adult children were disinherited as a result of the influence of another, they may have recourse through the probate court.

8. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, particularly in the case of a surviving spouse choosing to take an elective share against the estate.

9. How is Distribution of the Estate Handled if there is no Will?

Florida law sets forth rules for the distribution of an estate if there is no will.

If these is a surviving spouse and no lineal descendants, the surviving spouse is entitled to the entire estate.

If there is a surviving spouse with lineal descendants, and all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $20,000 of the probate estate, plus one-half of the remainder of the probate estate. The descendants share in equal portions the remainder of the estate.

If there is a surviving spouse with lineal descendants, and not all lineal desdendants are also descendants of the surviving spouse, the surviving spouse is entitled to one-half of the probate estate, and the descendants of the deceased share the other half of the estate in equal shares.

If there is no surviving spouse and there are descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of their deceased parent.

If there is no surviving spouse and no children or other descendants, Florida law provides additional rules for distributing an estate in such circumstances.

10. Who is responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate. The estate tax return, Form 706, is filed by the Personal Representative. The Form 706 is due to be filed 9 months after the date of death.

By: Jeffrey Skatoff

Article Directory: http://www.articledashboard.com

Jeffrey Skatoff is a Florida probate lawyer in South Florida. His law firm, Clark Skatoff LLP, has handled hundreds of Florida probates in the Florida Court system since 1971. Attorney Skatoff also handles will contests, trust disputes, and tax issues arising in the administration of a trust or estate. www.clarkskatoff.com

1-888-SKATOFF

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In my Probate Real Estate business over the last 22 years one of the road blocks which come up often is dealing with the estates attorney. As a Probate Agent using the I.A.E.A as much as possible I have been usually able to control the situation by positioning myself correctly. You have to understand as either an investor or real estate agent coming into an existing probate in process, the attorney is just not going to do things your way to help you purchase at a wholesale price or earn a listing or sale. There are some things you can do to increase your success rate and this is my focus today. Probate Homes are a goldmine so don’t look at this as a reason to not work with Probate Real Estate.

First I take every potential probate as an opportunity to establish a new business relationship with an attorney for future business. Yes, I’m going to control the deal but in a way which shows my professionalism in this niche and have the attorney at the end of this transaction consider me an agent to do business with in the future. Remember, this is a six figure opportunity and every probate you come into contact with regardless if you earn from it or not is a chance to start the building blocks for future business with the attorney.

What I do is once I have a offer signed by the petitioner/executor and as either an investor, probate agent or both, I have my title company deliver the package (offer, all support document, a letter of introduction with short bio on me and finally a one page letter on what we need for the attorney to do (time line) to have a successful close. Your Probate Real Estate business will take giant steps ahead if you follow this procedure. You won’t win everytime as some attorneys will take offense to you trying to control the deal but if you do this right the attorney should see you as a true professional who knows what he/she is doing. As a Probate Agent I want the attorney to understand I work in probate sales, take listings and also will cash the estate out if they prefer a quick sale. The most important part of this package is the statement I include which says “If you have any questions on my offer which the estate has accepted, please list your disagreements in writing (per my offer terms) within 3 days and I will have my attorney (Mr X) contact you.”

What I have done here is informed the estates attorney he/she needs to review now and if any changes are suggested they must be in writing and back to me within 3 days. I also state if he/she does have any contract changes I will have my attorney contact them immediately or they can talk now if he/she prefers but “Time is of the Essence”. This is powerful as now I have set the table with my position. The attorney knows I’m not a wanna be who purchased some late night infomercial package on buying probates as I have the correct forms, language, and I’m represented by an estate attorney. Most of the time any changes will be minor and we move right along with the escrow. When there has been a road block I have my attorney call and it is usually cleared up and we move forward. I have never had a probate offer at this point (petitioner/executor) signature turned down. This will serve you well so try to understand this concept.

You can have an estate attorney write a letter for you or make a phone call for a few hundred dollars and if you are acting as an investor in this probate flip you are going to make a minimum $25K so what is the problem on a few hundred dollars? As a Probate Agent remember you will be earning from 4-6% commissions so again a few hundred dollars to smooth your clients offer makes perfect sense and has served me well over the years. To find an estate attorney look for an attorney who does estates in their practice and if you can be referred by someone even better. Explain to the attorney what you do as an Probate Agent and your needs. A small retainer or pay as you go will be worked out when you find the right attorney. Remember the attorney must understand your positing in dealing with Probate Real Estate Investing and what your needs are. I had to go through several after my first attorney retired but I have always been able to find the right one.

This is a six figure opportunity done the “Diamond Farming” correct, professional way and I take pride in the way I have conducted my probate business over the years and I teach my probate real estate students the exact same techniques I use. Call me if you care to discuss this any further as I’m always willing to take the time to talk about probate real estate investing an or being a probate agent.

Gary DiGrazia Sr
ReMax In Motion Real Estate
http://www.probate-realestate.com
http://www.GaryDTeam.com

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