Phone: 727-397-5571

Common Questions About Florida Law

It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.

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  • What if my loved one’s will included a testamentary trust?

    Testamentary Trust Paperwork and a Gavel on a DeskA testamentary trust is trust created in someone's last will and testament. While many trusts are established during the grantor’s (creator's) lifetime, a testamentary trust goes into effect only upon death. 

    Understanding Florida Trusts

    A trust is a special sort of fiduciary relationship, in which the grantor (i.e, trust creator) grants another party—known as the trustee—the right and duty to hold property for the benefit of a third party. Trusts can receive and retain ownership of almost any sort of asset, including but not limited to:

    • Homes
    • Real property
    • Motor vehicles
    • Cash accounts
    • Investment portfolios
    • Firearms
    • Artwork

    In estate planning, trusts are often used to:

    • Avoid probate. If a Florida resident passes away without a trust, their assets will usually be subject to probate, the time-consuming process whereby a court oversees the payment of the estate’s debts and the distribution of assets from the estate to heirs and beneficiaries.
    • Exercise control over assets. Some trusts allow for the trustor to transfer assets into the trust’s possession while they are still alive, allowing them to retain partial or total control over the assets until they pass away.
    • Protect privacy. Probate proceedings take place in court, which means they become part of the public record. Since most trust transactions take place behind closed doors, a trust can help protect heirs’ privacy.

    However, unlike conventional living trusts, testamentary trusts are still subject to probate.

    Testamentary Trusts

    People often believe that wills and trusts are mutually exclusive. However, the testamentary trust provides something of a common ground between these two popular estate planning instruments.

    Specifically, Florida law allows for living persons to sanction the creation of a trust in their last will and testament. If done correctly, the will allots certain assets to the trust’s care. Once the trustor passes away, the designated assets are transferred to the trust.

    People sometimes create testamentary trusts because:

    • Testamentary trusts seem simple. People may establish testamentary trusts because they seem simple. After all: the trust is established by the will, allowing the grantor to create a trust without drawing up separate documents.
    • Testamentary trusts are controllable.  Although conventional living trusts still allow the trustor to retain rights of access to any assets they transfer to the trust, they still necessitate a change in ownership. However, testamentary trusts allow the grantor to keep assets titled in their own name.

    Why Testamentary Trusts Can Be Problematic

    Since testamentary trusts are created by the provisions of a will, a probate is needed to admit the will to probate. In Florida, probate is the process that:

    • Recognizes a will and establishes its validity
    • Accounts for the entirety of the estate’s asset
    • Pays the deceased person’s remaining debts
    • Oversees the distribution of assets in accordance with the terms of the will, if any exists

    Under most circumstances, probate is overseen by the court and carried out by a personal representative (or executor) named in the will. However, probate can present unexpected challenges—for the executor, and for heirs—if the deceased person sought to establish a testamentary trust. This is because the trust necessitates a second level of administration above and beyond probate.

    If the grantor’s last will and testament was not recently revised, or was written without the assistance of an estate planning attorney, the personal representative may struggle to complete the transfer of assets into the trust’s care, especially if the deceased person did not clearly explain the conditions of the trust or nominate presumptive trustees.

    When to Use Testamentary Trusts

    We typically use testamentary trusts in more simple estate planning situations, such as where someone wants to leave assets to a minor beneficiary.  Here, the trust would typically say "I give my assets to my child/children." If, however, this child is under a certain age (like 25), then his or her share is held by someone trustworthy until that child reaches an older age. This trust is known as a testamentary trust as it only comes about once the testator dies.

    Contact an Attorney Today

    If your loved one’s will includes a testamentary trust, DeLoach Hofstra & Cavonis P.A. could help you navigate the complexities of Florida probate to receive a hassle-free inheritance. Please send us a message online or call us at 727-777-6842 to schedule your consultation as soon as possible.

     

  • What are my rights as a beneficiary of a Florida trust?

    There are several reasons why beneficiaries, heirs, and family members disagree with how a trust is administered. One of the most critical rights beneficiaries have is the ability to challenge the trustee’s actions in court proceedings or through estate litigation.

    Beneficiary Rights Under the Florida Trust Code

    In legal matters, there’s a difference between an heir and a beneficiary. An heir is a relative or next of kin who stands to inherit after a family member passes away without a will. A Beneficiary Signing Trust Paperworkbeneficiary is a named party in a legal document (such as a will or trust) who has a right to receive a deceased person’s property. There are several tiers of beneficiaries to a trust, the most senior being a qualified beneficiary.

    Under the Florida Trust Code, beneficiaries of a trust have the right to expect certain actions and behaviors of the trustee, including:

    • Proper administration of the trust according to the document instructions and Florida law. The trust document should clearly state the testator’s intentions and which state’s laws apply to the provisions. If there’s no mention of the governing location, courts may determine jurisdiction based on where the trust was created or where the testator lived at the time of its creation.
    • Acting solely for the interests of the beneficiaries. The trustee must place the interests of the trust beneficiaries above all others, including their own.
    • Performing all duties in good faith. Everything a trustee does in administering a trust should be done to the best of their ability and without self-dealing and conflicts of interest.
    • Impartiality. Florida law requires trustees to treat all beneficiaries the same, showing no preference or applying different standards among beneficiaries.
    • Protection and defense of the trust. Trustees should take steps to defend claims made against trust property or enforce claims of the trust, such as using trust funds to secure an asset for the trust or filing lawsuits against someone to defend the trust in court. It also includes dealing with former trustees and collecting trust property and records from prior trustees.
    • Prudent use and investment of trust assets. There are strict rules for the holding, investing, and spending of trust assets. Trust property such as cash, stocks, bonds, and real estate, should be held and titled in the name of the trust. There must be no commingling of the trust property with the trustee’s own. Any expenses incurred by the trustee should be limited, reasonable, and documented. You also have a right to object to any professionals paid using trust money, such as brokers, accountants, realtors, or other third parties employed by the trust.
    • Timely communication and distribution. Trustees should not hold distributions or inheritances for any longer or any reason than legally necessary. All trust distributions should be made as soon as outstanding issues are resolved. If a beneficiary makes a request regarding the trust, the trustee should respond with a decision and a clear reason for the decision in a reasonable period.
    • Providing relevant information about the trust. Florida law requires trustees to keep qualified beneficiaries reasonably informed of the trust and its administration. This includes providing a complete copy of the trust document (including amendments) and an annual accounting showing all trust gains, losses, and distributions. 

    If You Suspect Mishandling of a Trust, We Can Help

    A trustee is considered a trusted agent, or fiduciary, to the heirs. This title carries legal responsibilities and consequences, including being held personally liable for breach of duty. If your trustee has engaged in self-dealing or has conflicts of interest, these transactions could be voided, and your trustee may be removed.

    At DeLoach, Hofstra & Cavonis, P.A., we have helped clients across Florida with various estate litigation matters. To learn more about your case, please call us at (727) 397-5571 or use our quick contact form so we can discuss all of your options under the law.

     

  • There was ambiguous wording in my relative’s will. How will the court decide what it means?

    Last Will and Testament Paperwork With a Gavel and PenLanguage that may be interpreted in different ways by different people can cause confusion, but in a last will and testament, it can also lead to costly estate litigation. When a certain word, phrase, or provision of a will could be taken in two or more different ways, there’s a strict process for determining the creator’s intent.

    How Courts Decide the Meaning of Ambiguities in a Will

    Unlike contesting a will in Florida, there’s no need to declare the entire will invalid if there’s an ambiguity in the document. Instead, the probate court will make a ruling on the intended meaning based on the deceased’s other provisions and overall disposition.

    The court will have to determine:

    • Whether an ambiguity exists. A will is not necessarily ambiguous just because two opposing parties interpret the will differently. The court will have to examine the document to determine whether the language in the will could be interpreted multiple ways. If the court finds that the creator’s intent can be determined as a matter of law, it will rule that no ambiguity exists and no additional evidence will be admitted.
    • What type of ambiguity exists. There are two kinds of ambiguities in these proceedings: patent and latent. A patent ambiguity is apparent on its face, or an easily identifiable error—for example, a will that leaves assets to the “grandchild” when there are multiple grandchildren. A latent ambiguity happens when the words of the will could be applied in multiple ways. For example, a will that leaves “all of mother’s possessions” to one heir, but leaves “mother’s engagement ring” to another heir. 
    • How to reconcile inconsistent provisions. Even if an error exists in a single clause, the court will assess the document as a whole to determine the creator’s true intent. If the court cannot make a determination, it may allow both parties to submit outside evidence (such as the deceased’s personal letters or diary) to resolve the matter.

    If you believe there is a mistake in your relative’s will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • How can I prove undue influence in a will contest case?

    Woman Having an Intense Discussion With an Elderly WomanIll or elderly people are at high risk of being taken advantage of by scammers, petty thieves, or even those closest to them. Sometimes, an individual may manipulate a senior into changing their will, rerouting assets to the individual instead of the senior's proper heirs. When this happens, relatives may contest the will in probate court after a senior's death in order to have the will ruled invalid.

    What Is Undue Influence?

    Physical or mental incapacity can make a loved one extremely susceptible to elder exploitation. If someone unethically pressures a senior into changing their will for personal gain, the will can be contested based on undue influence.

    In general, a successful undue influence case proves that:

    • The will left property in an unexpected way. This usually means that close family members have been cut out of the will to the benefit of another party. As you may imagine, it can be difficult to prove what your loved one’s wishes are after their death. Correspondence from your loved one referring to certain items (such as “when you have my engagement ring,” or “I want that house to stay in the family”) or similar testimony can help prove true intent.
    • The influencer had a confidential relationship with your loved one. Anyone who has close contact with a senior could build a bond of trust to exert influence, such as a former spouse, distant relative, or a caretaker. Testimony from doctors, lawyers, relatives, and others can be helpful in demonstrating the nature of the relationship between the influencer and the deceased.
    • Your loved one was in a vulnerable position. In many cases, a loved one may be suffering from dementia or other condition that impairs their mental capacity. An influencer may further alienate a victim by preventing other family members from visiting or lying to nursing home staff.
    • The influencer improperly benefited from the will. Not all influences qualify as improper influences. An attorney may suggest certain changes to a will for the benefit of the heirs, and a spouse might push a dying loved one to alter an out-of-date will. The court will have to decide whether the influence caused an unfair distribution of assets.

    If you suspect your departed relative was pressured to change their will, Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What is will reformation?

    Florida law sets strict rules about who may contest a Last Will and Testament, as well as the reasons a Will can be legally challenged in court. However, not all errors in a Will call for the revocation of the entire document. The Florida probate court may reform a portion of the Will to correct mistakes—even mistakes are not blatantly obvious.

    When Can Florida Residents Reform a Will?

    Last Will and Testament Paperwork in a FolderAs of 2011, Florida law allows for modification of a Last Will and Testament to correct a mistake of fact or law in the written Will. If you suspect that there is an error in the probated Will, you will have to provide sufficient proof that the mistaken provision doesn't reflect the testator's intent.

    Will reformations typically involve:

    • Interested persons. Any "interested person" under the Florida probate code may petition the court to reform or modify a Last Will and Testament. These persons usually include spouses, beneficiaries, heirs, and creditors.
    • Discovery. The court requires clear and convincing evidence that a written portion of the Will conflicts with the testator's original intent. Interestingly, the court may consider evidence in its decision that contradicts the apparent plain meaning of the Will. For example, imagine a grandmother's Will is deposited with the probate court and provides $1000 to each of her three children. However, a written draft of the will leaves each of her children $100,000. It may take physical evidence or witness testimony to determine which Will contains the mistake of law or fact. 
    • Tax concerns. The updated statute allows heirs to modify the terms of a Last Will and Testament to achieve tax objectives after a loved one's death. The court will only allow these modifications if evidence shows that modification does not contradict other terms of the Will.

    If you have questions about the terms of your loved one's Will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • Do bank accounts go through probate in Florida?

    The easiest way to tell if an asset must go through probate is whether it was held in your loved one's name only. Generally, any property under the sole ownership of someone who has passed away will have to go through probate, regardless of whether they had a will or died intestate. However, there are a few exceptions for bank accounts that could allow them to pass outside of probate.

    How Bank Accounts Are Treated During Florida Probate

    Bank Records FolderProbate is used to gather, record, and retitle assets owned by a deceased person so they can legally be passed on to new owners. Probate assets generally include assets that are in the decedent's own, individual name, and that account does not have a beneficiary designation. That said, the ownership documents of some properties—including bank accounts—allow another person to inherit directly if the principal owner dies without the necessity of probate.

    Bank accounts that could avoid probate in Florida include:

    • Accounts with a named beneficiary. When you open a bank account, you can add a payable on death (POD) designations to your bank account so that when you die, the asset is distributed to that beneficiary upon your death.  This avoids probate.
    • Shared accounts between spouses. Florida probate laws give married couples the "right of survivorship" on jointly-held assets, meaning any property held in both spouses' names will pass to the remaining spouse without probate. 
    • Joint accounts. A bank account can be opened that allows people to own it as "joint tenants with rights of survivorship."  If one co-owner, the asset is owned by the survivor, all without probate.
    • Accounts naming a trust as beneficiary. If the deceased person set up a trust during their lifetime, they may have named the trust as a beneficiary on bank accounts, retirement accounts, life insurance, or other assets. If done correctly, all assets poured into the trust would pass outside of probate and into the immediate control of the successor trustee. We generally prefer to have assets flow to a living trust under most circumstances.

    Should All of My Accounts Have Joint Owners?

    A good estate planning attorney can discuss account ownership, jointly held beneficiaries, and more, in order to make sure your assets go to the right place upon your death. We usually DO NOT want all assets jointly held with someone else unless very specific reasons exist. Avoiding probate is generally a good goal, but there are good ways and bad ways to avoid probate!

    Let Us Guide You Through Estate Administration

    At DeLoach, Hofstra & Cavonis, P.A., we know how complex probate can be and the complications that make the process longer and more costly. Our Florida probate attorneys have years of experience helping relatives through estate administration as quickly and efficiently as possible.

    To learn more, contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.

     

  • What is fraud and duress, and how can I prove it in court?

    There are only a handful of reasons a person may contest a relative's will under Florida law. One of them is inappropriate or illegal third-party involvement that causes a person (testator) to change the terms of their will in the third-party's favor. Depending on the circumstances, these actions are known as undue influence, fraud, or duress.

    Requirements for Fraud and Duress in a Florida Will Contest

    Will Contest on a Computer Screen With a Gavel and Scales of JusticeAlthough fraud, duress, and undue influence are often used interchangeably, there are subtle differences. Undue influence involves isolating the testator (either physically or emotionally) and using fear and intimidation to get them to change their will. On the other hand, a testator may be manipulated by:

    • Fraud. Fraud involves intentional attempt(s) to deceive or mislead the testator, making them believe false statements that spur them to change their will. In this way, the testator is making the changes of their own free will, but doing so under false impression or incorrect information.
    • Duress. Duress is the use of coercion or force to make a testator alter their will. In these cases, the third party often has physical control (or access) to the testator, and threatens physical harm to the testator or someone the testator loves. Under duress, the testator is aware of their actions, but is not making them of their own free will.
    • Active procurement. Third parties may involve themselves in the testator's estate planning process to make sure certain changes are made. A third-party's attempts to facilitate the making or rewriting of a will is called active procurement, and could be evidence of undue influence. Common forms of active procurement include a third-party's presence when the testator expressed the desire to make a will, securing of the attorney who drafted the will, obtaining the witnesses to the will, giving instructions on the will's contents to the drafting attorney, knowledge of the contents of the will prior to signing, presence at the execution of the will, and keeping the will in their possession after its execution.

    While a will that was made with a lack of testamentary capacity can be declared completely void, a will written with undue influence, fraud, or duress may only have certain portions declared void. For this reason, it's vital to speak with estate litigation attorneys who can piece together the evidence and fight for your inheritance in court.

    Contact the attorneys at DeLoach, Hofstra & Cavonis today by filling out our quick contact form to get your questions answered.

     

  • Are there alternatives to contesting a Florida trust in court?

    Trusts are a common way for people to pass on their property while saving their heirs time, money, and the need to go through probate. However, this doesn't mean that trusts are guaranteed to avoid the courtroom. The good news is that if an interested party has grounds for contesting the trust, there may be a way to resolve the problem without the need to file a lawsuit.

    Alternatives to Filing a Lawsuit to Contest a Trust

    Female Lawyer Discussing Paperwork With a ClientOne of the easiest ways to clear up confusion surrounding a trust is to request a thorough accounting from the trustee. Beneficiaries have the right to see the financial actions taken by a trustee on behalf of the trust and heirs. If the trustee refuses to provide an accounting, the court may compel the trustee to do so.

    If the accounting provided doesn't account for all trust assets or contains objectionable transactions, beneficiaries can ask the court for a more detailed accounting. If the beneficiaries are not satisfied, they may enter trust litigation to remove the trustee.

    If parties to the trust wish to question the terms or a trust, the actions of a trustee, or the validity of the trust itself, the matter can be resolved without litigation through:

    • Settlement Agreement. Nearly any trust matter can be resolved through a binding, non-judicial settlement agreement. All parties work to find an equitable remedy for the problem, giving them more control over the result while preventing the loss of trust assets in litigation.
    • Trust Modification. A trust dispute may only need clarification or modification of one or more terms of the trust. Trust modification is allowed only if the effects of the change are consistent with the settlor's purpose for the trust.
    • Termination of Uneconomic Trusts. A trustee has the authority to terminate a trust with a total value under $50,000 that contains insufficient assets to justify the cost of administration. If the trustee doesn't terminate an uneconomic trust, the court has the power to modify or terminate the trust, as well as the power to remove and appoint trustees. Once the trust is terminated, the trustee must distribute the trust property in a manner consistent with the settlor's purpose for the trust.
    • Trust Reformation. Any interested party may petition the court to reform the trust if certain terms don't conform to the settlor's overall intentions. This is typically done in cases of typos, unclear designations, or other errors that make the instructions significantly different from the settlor's intent. The interested party will need to provide clear and convincing evidence the terms of the trust were created by a mistake.
    • Trustee Removal. Co-trustees or beneficiaries may request court removal of a trustee, or the court may remove a trustee on its own initiative. A trustee may be removed for several reasons, including breach of trust, breach of fiduciary duty, or failure to effectively administer the trust. As long as the removal is in the best interests of all beneficiaries, is consistent with the purpose of the trust, and is followed by the appointment of a suitable successor trustee, interested parties don't need extensive proof of malfeasance to remove a trustee.
    • Trustee Resignation. A trustee may resign their duties with court approval or resign without court approval long as the settlor (if living), co-trustees (if any), and beneficiaries have been given 30 days notice of the intent to resign.

    Let Us Advise You on Your Next Steps

    In order for any of these actions to avoid ending up in litigation, it will take an experienced probate and estate lawyer to advise you every step of the way. If you are the trustee or a beneficiary of a trust, we can answer your questions and work to resolve your dispute as efficiently as possible. Contact DeLoach, Hofstra & Cavonis, P.A. to set up a consultation through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

     

  • What should I do if someone interferes with my inheritance?

    If you were unsuccessful in challenging a loved one's will in court, there are other legal options available to you. One of these is to file a tort action, or lawsuit for a wrongful act that caused you economic harm, under the theory of tortious interference with an expectancy.

    What Is Tortious Interference With an Expectancy?

    Tortious interference was first recognized in a 1966 court case in Florida, and focuses on protecting the rights of the person who created the will rather than Lawyer Talking to a Client About Tortious Interferencethe rights of the person bringing the case. If someone used fraud, duress, undue influence, or other independent tortious conduct to deprive your loved one of the right to dispose of property freely, a beneficiary (you) has the right to seek compensation on your loved one's behalf.

    There are a number of requirements needed to establish a claim for tortious interference. For example, you must be able to prove:

    • Your loved one had a specific intention to leave a portion of their estate to you
    • A third party (the defendant) did or said something to your loved one to reduce or eliminate your share of the estate
    • There was a strong probability that your loved one would have carried out their intentions if the wrongful acts of the defendant had not occurred
    • The defendant's interference was intentional
    • The defendant benefitted by receiving estate assets contrary to the testator's intent, by redirecting your inheritance to benefit someone else, or by depriving you of your portion of the estate
    • The defendant's wrongful interference was the reason your inheritance was reduced
    • The defendant's wrongful interference caused you to suffer actual monetary damages

    Unlike other forms of estate litigation, these actions seek compensation from the defendant personally rather than through funds in the estate. A successful judgment of tortious interference is paid from the defendant's personal assets and could include both compensatory and punitive damages.

    Could I File a Tortious Interference Lawsuit?

    This type of lawsuit is only available if you were not able to get an adequate remedy for the wrongdoing in probate court. Generally, this means you must have attempted a will contest or other action during probate to get your inheritance reinstated. However, the law doesn't require your attempt to contest the will to be successful, only that you exhausted your options in probate before making a tortious interference claim.

    You may also be barred from bringing this lawsuit if:

    • Your loved one is still alive. Since tortious interference involves pressing the rights of another person, you can only do so if the other person is unable to assert those rights. Florida Courts will not recognize a tortious interference case before the death of the person who created the will.
    • You had a fair opportunity to contest the will. It's understandable for the court to bar a claim because you chose not to seek relief in probate. However, if you did not have a fair chance to file a will contest (you were not properly notified of the death, etc), you may still be able to file a lawsuit.
    • You turned down a remedy during probate. The court may decide not to hear your case if there was an adequate and alternative solution offered during probate, but you chose not to take it.

    Let Us Help You Through Your Next Steps

    It takes an experienced probate and estate lawyer to succeed in a tortious interference with an expectancy claim. At DeLoach, Hofstra & Cavonis, P.A., we carefully examine the circumstances of your loved one's last will and testament, including whether they had the valid testamentary capacity or were unduly influenced by a third party.

    Whether you're considering contesting a will or are looking for ways to prove someone placed pressure on your loved one, we can help present your case and makes sure your loved one's true intentions are honored. Set up your consultation today through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

     

  • What is wire fraud?

    Man Pointing at a Wire Fraud SignWire fraud is a type of fraud that involves the use of telecommunications or the internet. Criminals may commit wire fraud with phone calls, faxes, emails, text messages, social media contact, or other online platforms. In many cases, hackers monitor activity for weeks after breaking into company systems to determine the best way to steal money.

    Steps to Take After You Are Victimized by a Fraudulent Wire Transfer

    Wire fraud is commonly used to illegally redirect funds during business transactions, such as completing real estate sales or making large payments to vendors. If you have reason to believe a wire transfer fraud has occurred, it is vital that you:

    • Call the bank(s). If the transaction took place just hours ago, you may be able to stop the transfer of funds from one financial institution to another. Contact both the sending bank the recipient bank to request a stop payment at both ends of the transaction. Even if the funds can’t be recovered, the banks may be able to help the authorities in tracing the money.
    • Report the incident to the FBI. The faster you file a complaint with the U.S. Internet Crime Complaint Center (IC3), the sooner your local FBI field office can start a Financial Fraud Kill Chain to stop the transfer of funds.
    • Talk to an attorney. A lawyer with experience in business email compromise greatly improves your chances of seeing a recovery on your losses. Our legal team can determine what actions you should take, who may be liable, and how to prevent these actions from happening in the future.
    • Investigate the breach. Your employer may need to evaluate your emails and computer systems to determine how the hackers got access to the company, both to determine liability and improve online security.
    • Evaluate third-party actions. There is often more a bank, contractor, or business could have done to prevent the security breach from happening. We can examine whether the actions or omissions of a holding company, financial institution, vendor, title company, or other participant could have allowed the hacker to gain access.
    • Examine your insurance policies. Companies and individuals may have insurance coverage to pay for wire fraud losses, but it may take the help of an attorney to get the payment you need.

    The attorneys at DeLoach, Hofstra & Cavonis, P.A. offer free case evaluations for victims of wire fraud. Contact us today to set up a consultation and see how we can help you.

     

  • How much is an executor (personal representative) paid in Florida?

    When executors of a last will and testament (known as personal representatives in Florida) agree to carry out the last wishes of a loved one, their motivations typically aren't financial. They take up the position to honor the deceased person and to make sure everything is done properly and in accordance with the Man Taking Money Out of a Walletlaw.

    However, the administrative responsibilities of settling an estate can be like a part-time job for the personal representative—one they cannot quit until all the tasks are done. Fortunately, state law allows a personal representative to get paid for their role in the probate process.

    Compensation for a Personal Representative in Florida

    In order to ensure that personal representatives are fairly compensated, Florida Statutes set strict rules on when, how, and how much you could be paid.

    Here are a few things you should know about collecting payment for acting as a personal representative:

    • Your fee is for your time and effort. There are a wide variety of duties involved with closing a person's estate, including providing an accounting to the beneficiaries and settling the deceased person's debts. The executor fee compensates you for your time, not your out-of-pocket costs.
    • You can recover the full amount of your expenses. If you have incurred any out-of-pocket expenses (such as funeral home costs, flowers, memorial service deposits, mileage and transportation, etc) you have the right to be reimbursed by the estate for the full value of these costs.
    • You have the right to be paid before other creditors. State law also outlines the order in which creditors should be paid after a person passes away. Executor fees and probate attorney fees are in the first tier, so you can collect compensation before paying off other debts.
    • Your fee is based on the value of the estate. Your commission is based on the inventory value of the probate estate assets, as well as any income earned by the estate during administration. If the estate value is $1 million or less, your fee is 3% of the estate assets. If the estate value is between $1 million and $5 million, your fee is 2.5% of the estate assets. If the estate value is between $5 million and $10 million, your fee is 2% of the estate assets. For assets over $10 million, the fee is 1.5% of of those assets. Keep in mind that assets that pass outside of probate (such as trust assets, 401Ks, or life insurance benefits) are not included in these calculations.
    • You may be paid for any "extraordinary services." Florida law allows a personal representative to be compensated for actions going above and beyond normal duties. Such actions might include the sale of real estate or personal property, involvement in court proceedings for tax payments, self-preparing tax returns, the continuation of the deceased's business functions, dealing with a protected homestead, or acting as your own legal representative in litigation involving the estate.
    • You can petition the court for a higher fee. If more work has been done, a personal representative can petition the courts for additional payment. Before awarding any more compensation, the court will consider the circumstances and complexity of the estate administration, as well as how quickly and efficiently you performed your duties.
    • Your attorney will help you. As part of any formal probate administration, your attorney will help explain what the personal representative is entitled to.

    Let Us Guide You Through Estate Administration

    As experienced probate attorneys, we know how long a complicated administration can take—and we know how costly an error in the process can be. If you need help, contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.

     

  • How long do I have to challenge a will in Florida?

    Sand Timer and CalendarFamily members may live their entire lives planning for—even depending on—an inheritance from a relative. However, many discover after the relative's passing that the terms of their loved one's last will and testament are not what they expected. If you believe your inheritance rights have been violated, you need to act quickly in order to bring your claim to court.

    Time Limits on Challenging a Will in Florida

    Although everyone has the right to distribute their property to heirs as they see fit, you may challenge a will if you have reason to believe that it was not made in accordance with the law. Just as there are a limited number of legal reasons to contest a will in Florida, there are also strict deadlines for filing a will contest.

    In order to challenge the will, you must:

    • Meet the filing deadline. Florida law mandates a strict filing deadline for will contests. Any interested person must file a formal lawsuit contesting the will within 90 days after the filing of the Notice of Administration—the document filed by the estate's personal representative notifying the decedent's heirs of probate court proceedings. If you received a Petition for Administration by formal notice, you only have 20 days to contest the will.
    • Have legal standing to bring a claim. Only certain people are allowed to contest a person's will in Florida. Our attorneys can tell you if you meet the requirements for legal grounds and standing.
    • Have proper evidence to prove your claim. In order to prevail in your case, you will need to collect supporting documentation, testimony, and other evidence to convince the probate court of your right to inherit.

    The estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • Do I have to pay my loved one's debts in a specific order?

    Woman Inspecting Debt PaperworkAs the personal representative to an estate, you have many duties to perform during estate administration. One of the most important responsibilities is to pay off any outstanding creditor claims. The state requires that these debts be paid based on their priority, and Florida statutes include the order in which creditors’ claims must be settled.

    Tiers for Paying a Family Member’s Debts During Florida Probate

    In Florida, a deceased person’s debts are paid according to certain tiers. During the probate process, you should settle these debts starting with the first tier, ensuring that all debts falling under each group are settled before moving on to the next tier.

    • Tier 1. Any expenses incurred as a direct result of estate administration, any attorney fees required to assist in the closing of the estate, and your compensation for acting as personal representative are all paid first from the estate account.
    • Tier 2. Florida law allows a payment of up to $6,000 from the estate for funeral and burial expenses. These costs are usually paid by you (or another family member) before probate starts, but you can collect reimbursement after Tier 1 costs are covered.
    • Tier 3. Tier 3 covers your loved one’s outstanding federal income tax payments, estate taxes, and unpaid court fees, fines, or expenses. It also encompasses debts with a preference under federal law, including debts owed to Medicaid or other government assistance programs.
    • Tier 4. Payment for any necessary and reasonable medical care that your loved one received in the 60 days prior to death is paid out under this tier. In addition, a family member may collect payment at this time if they acted as a carer or tended to your loved one at the end of their life. If your loved one passed away in a nursing home, hospital, hospice, or other treatment facility, any costs not covered in care incurred in the last 60 days will also be paid.
    • Tier 5. Tier 5 is reserved as a family allowance for your loved one's surviving spouse and children. Surviving family members can receive up to $18,000 to supplement their income and help them maintain their household. This amount doesn’t have to be settled immediately, but can be paid for up to a year after your loved one's death.
    • Tier 6. This tier covers the payment of any outstanding or past due child support payments (arrears) your loved one owed at the time of death.
    • Tier 7. If your loved one owned a business and owed outstanding payments to suppliers, customers, or creditors, these would be paid after child support arrears. This amount is not paid with your loved one’s personal assets, but settled using any assets owned or acquired by your loved one’s business.
    • Tier 8. Any claims that fall outside of Tiers 1 through 7 are paid out in this tier. For example, court judgments against your loved one would be settled last. If there are still funds in the estate at this stage, Tier 8 may also cover any excess on burial expenses and your loved one’s medical care.

    What If Paying All of the Creditors Leaves Nothing in the Estate?

    Under Florida law, if the debts are settled in order but the estate is insufficient to pay the entirety of the next tier, the creditors in the latter tiers shall be paid ratably in proportion to their respective claims.

    It’s vital to understand that not all of your loved one’s debts will necessarily have to be paid. Once you have notified all creditors about your loved one’s death, creditors are required to file claims for payment with the probate court within 30 days (occasionally this period is extended to 3 months). If any creditor allows this period to expire without a response, the estate may not have to pay any amount outstanding.

    You also have the right to dispute any creditor claims that don't have merit. This is where our experienced estate administration attorneys can really make the difference. We carefully investigate each claim, including the balance on the debt, the validity of any fees, and whether the creditor engaged in unethical collection practices. We may be able to negotiate the outstanding amount owed or force the creditor to surrender the right to collect.

    If you need help with your responsibilities as a personal representative, our attorneys can guide you through the necessary steps of closing the estate and ensure everything is done in accordance with the law. Contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.

     

  • How much will it cost to hire a Florida probate attorney?

    If you are the nominated personal representative to an estate, you will probably be looking for a probate attorney to help you in this difficult time. You need an attorney for a formal probate administration - i.e., when the probate estate exceeds $75,000 - to assist you.  In this situation, you may be wondering about attorney's fees, among other matters. In Florida, the probate attorneys generally gets paid a fee of around 3% of the probate inventory, as explained a little better below.

    Estimating the Cost to Hire a Florida Probate Attorney

    Potential Client Talking to a Lawyer and Looking at PaperworkFlorida's probate rules were created to help define a reasonable attorney's fee based upon the size of the estate/probate. It's worth noting that the "value" of the estate includes only the assets that go through probate (and any income they earn during the probate period). The value of a homestead property and assets that avoid probate may not be counted.

    Florida statutes set forth what are considered reasonable fees for Florida probate attorneys at the following rate:

    • $1,500 for estates up to $40,000
    • $2,250 for estates between $40,000 and $70,000
    • $3,000 for estates between $70,000 and $100,000
    • $3,000 plus 3% of the value over $100,000 for estates between $100,000 and $1 million
    • $3,000 plus 2.5% of the value over $1 million for estates between $1 million and $3 million
    • $3,000 plus 2% of the value above $3 million for estates between $3 million and $5 million
    • $3,000, plus 1.5% on the value above $5 million for estates between $5 million and $10 million
    • $3,000, plus 1% of the value above $10 million for estates over $10 million

    Many attorneys have a minimum fee to do a probate that may exceed this schedule. One key to understanding the attorney's fee portion is that attorneys may be up for negotiating their fee depending on the size/complexity thereof. If the family is talking to a good probate attorney, that attorney will discuss the nuances of the work, their fees, expected costs, etc., before that attorney is hired. The 3% fee as mentioned above is not binding on the attorney or the family but it is a starting point for what is reasonable under most situations.

    Extraordinary Fees

    The fee schedule mentioned above is what is considered a reasonable fee, but fees may rise for what are considered extraordinary services. This may include dealing with taxes, litigation, real estate matters, how good the attorney is, etc., among other matters. The rules for all of this are set forth in Chapter 733, Florida Statutes, if you want to learn more.

    Probate and Homestead

    Generally speaking, the 3% fee does not include the value of the homestead property. While this can be pretty complex, the decedent's homestead is not part of the probate process so the attorney's fee is not based upon the value of the homestead property. Here, attorneys will charge a fee to declare the property as homestead, but that fee is generally not based upon the home value.

    Other Costs of Probate?

    The costs of probate include more than just attorney's fees, although that would typically be the most expensive fee. In going to court, the estate will generally need to have other costs, which may include court filing fees, bonds, publication fees, etc., In Pinellas County, we generally estimate the hard costs for the estate to be around $1,000 in most circumstances.

    Contact the legal team at DeLoach, Hofstra & Cavonis, P.A. today to have us explain your options to you, or download our free book, Navigating the Florida Probate Process.

     

  • What if my loved one wrote more than one will?

    If you are the personal representative to an estate, it falls to you to file the deceased person’s Last Will and Testament with the Florida probate court. But what if you locate two different Wills—or three, or more? Or a family member comes forward with a drastically different version of the Will?

    Which Will Is Valid?

    Last Will and Testament With a PenIt’s not uncommon for a person to create multiple Wills over their lifetime. However, only one Will can be valid at the time of a person’s death. The existence of multiple Wills is not only confusing, it's more likely to lead to estate litigation from disinherited beneficiaries.

    When deciding which version of a Will is valid, the court will consider:

    • The most recent document. In general, the most recently created Will is considered to reflect the deceased’s thoughts and wishes at the time of their death. But in order for the newest Will to be valid, the deceased must have legally revoked any previous Wills.
    • Whether previous Wills were revoked. Under Florida law, a person can revoke a Will in two ways: by writing, or by a physical act. For example, the most recent Will may explicitly state that any prior Wills are invalid. Or, the person can physically destroy the previous Will to revoke it.
    • Codicils. It’s possible to make changes to an existing Will rather than create multiple Wills that could cause conflict later. In order for any modifications to be legal, the deceased would have had to create a codicil, which is a separate legal document that must be written, witnessed, and signed according to Florida law. Codicils typically change only one or two things in the document (such as replacing a deceased beneficiary), and shouldn’t be used to rewrite the entire Will.
    • Evidence of destroyed or missing documents. Florida law allows the admission of a lost or destroyed Will for probate, as long as an interested person can establish the full and precise terms of the Will. However, two disinterested witnesses must be able to testify to the specific content of a lost Will. If an heir can provide a copy of the lost Will to the court, it may be supported by one disinterested witness.

    If you aren’t sure which version of a Will is legally valid, the dedicated attorneys at DeLoach, Hofstra & Cavonis, P.A. can answer your questions. Simply fill out the quick contact form on this page to set up a consultation and have us explain your options to you.

     

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