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Is An Attorney Required For Probate In Florida? Yes, in almost all cases you will need a Florida Probate Lawyer. For all but the simplest estates, Florida law requires that the personal representative of an estate hire a probate attorney to guide him or her through the process. While hiring an attorney might seem like an unnecessary burden, an attorney should help make the probate process as efficient as possible. Except for “disposition without administration” (very small estates) and those estates in which the executor (personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney. Even when an estate lawyer is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer. Florida’s system is too complex for most personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. In addition, judges in the state require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, executors in Florida cannot count on the court clerk’s office to guide them through, as they might in some other states.
Why Can’t I Just Record The Will To Change The Title To My Parent’s Property In Florida?
Title insurance underwriters in Florida generally do not recognize a recorded will as sufficient to convey title, and for good reasons. First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the deceased. Second, there are situations in which the property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.
Can An Estate Be Administered With A Missing Heir?
In many cases, yes, the estate could be administered. A missing heir is one who, although not shown on the title, has inherited a portion of the title due to the death of an owner, but who cannot now be located. Florida law has a useful provision under a formal probate administration which allows the personal representative to deposit the share of a missing heir into the registry of the court after the property has been sold.
A missing heir is much different from a missing owner of record. If the missing person is an owner of record and has not died or been declared dead by a court, the probate code does not apply and the situation is more complicated. A conservator may be needed.
Do All Estates In Florida Have To Go Through “Full” Probate?
No, very small estates without real property may qualify for “disposition without administration” and some estates may qualify for summary administration, which is a faster and cheaper form of probate administration. Because Florida’s homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property (principal residence), but little else, can qualify for summary administration. Also, if the deceased has been dead for more than two years, the estate can be handled in summary administration.
After A Property Owner Dies, Can His Or Her Power Of Attorney (POA) Be Used?
No. It has no “power” after the maker (the property owner) dies. Without meaning any disrespect, a good way to remember this is to recall that death turns a POA into a “DOA.”
Is Summary Administration Always The Better Way When Available?
Sometimes it is not practical to use a summary administration even if it is an option. Examples:
- The Will leaves the property to a large number of beneficiaries, each of whom would have to sign the contract to sell as well as the deed and other closing papers.
- If some of the beneficiaries are minors, guardianships may have to be set up and maintained until the minor reaches adulthood, but in a formal estate, the personal representative may be able to avoid that through the Florida Uniform Transfers to Minors Act.
- Sometimes, the whereabouts of one or more of the beneficiaries are unknown. Formal probate administration can accommodate a missing heir. Summary administration cannot.
- If one of the beneficiaries refuses to cooperate with the other owners, formal administration may be needed in order to sell the property. The alternative is a “partition” lawsuit by one or more owners, the costs of which are likely to exceed formal probate costs.
If a formal administration is needed after the second anniversary of death, certain steps related to creditors are no longer required and for that reason, the fees and costs may not be that much more expensive than a summary administration.
Is It Ever “Too Late” To Start Probate?
No, there is no deadline to open a probate in Florida, and we have handled estates 50 years after a person’s death. If family members have paid the property taxes so that no tax deeds are granted, probate is often feasible for decades. However, there is a practical limit in some family situations, because over enough time there may be several probate administrations needed due to the deaths of the initial heirs and even children of the heirs. Also, sometimes family members lose track of each other so that the current generation does not know enough about the estate of a deceased heir to know who the heirs may be. Probate can be started with minimal information, but it must be through a more expensive formal administration.
Do I Need To Personally Appear In Florida To Probate An Estate?
No, not usually for probate. Unless a dispute requires a hearing, neither the personal representative nor the estate attorney will actually go to court in Florida. There is no “reading of the will” like you see in old movies. Everything is done by mail, email, phone, and internet.
Read more related articles at:
Florida Bar: Consumer Pamphlet: Probate in Florida
The Problem With Probate In America And Ways To Fix It
Also, read one of our previous Blogs at:
Estate Planning Secrets: How To Avoid Probate
Click here for a short informative video from our own Attorney Bill O’Leary.
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