Estate Planning
Having Van Middlesworth as your estate planner will ensure that your assets are properly valued and protected. Our estate planning services keep detailed inventory of your assets and discuss your plans for these assets.
We will then discuss your long-term plans and develop a strategy to protect the value of your property through the use of estate laws.
WHAT IS PROBATE?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent). The process involves paying the decedent’s debts and distributing the decedent’s assets to their beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding. Then, they are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.
There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances.
WHO IS INVOLVED IN THE PROBATE PROCESS?
Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:
*The Clerk of the Circuit Court in the county in which the decedent was domiciled at the time of the decedent’s death; *The Circuit Court (acting through a Circuit Court Judge); *The person or institution serving as the decedent’s personal representative (or executor); *The attorney engaged by the personal representative to provide legal advice to the personal representative throughout the probate process; *Those filing claims in the probate proceeding relative to debts incurred by the decedent during his or her lifetime, such as credit card issuers and health care providers; and
*The Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and, sometimes as to federal gift, estate or generation-skipping transfer tax matters.
WHAT ARE THE ESTATES OBLIGATIONS TO ESTATE CREDITORS?
One of the primary purposes of probate is to ensure that the decedents debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedents probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the Clerk of the Circuit Court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly. As a person interested in the probate estate until the claim is paid, or until the claim is determined invalid.
The legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedents probate estate, must be paid before making distributions to the decedents beneficiaries. The Court will require the personal representative to file a report. This is done to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.
Interested in learning how VanMiddlesworth, P.A. can help you with your estate planning needs? Give us a call at (727) 821-2006 to schedule your free initial consultation.
