US Wills, Trusts & Probate : FAQ

1. What Florida Assets may need to be probated in Florida? 
2. Is a Florida lawyer required to handle a Florida probate? 
3. Must the Florida lawyer be in Florida? 
4. Is my U.K. will valid in Florida? 
5. Who can be a Florida Personal Representative? 
6. Do all estates in Florida have to go through formal probate administration? 
7. What if there is a revocable living trust? 
8. What about U.S. inheritance taxes? 
9. What if the deceased left no will? 
10. What if there are not enough assets in the estate to pay all of the deceased’s debts?

1. What Florida Assets may need to be probated in Florida?
   Generally, Florida will require the probate of assets in the deceased's sole name at death or otherwise owned solely by the deceased and which contain no provision for automatic succession of ownership at death. For example: a Florida vacation home titled in the sole name of the deceased is a probate asset except when it is held jointly. Then, it is not usually a probate asset.
   
   
2. Is a Florida lawyer required to handle a Florida probate?
   Florida law requires a Florida licensed attorney to handle Florida probates except for “disposition without administration” (a procedure for very small estates) or where the personal representative (executor) is the sole beneficiary. Even when not required, a Florida lawyer’s assistance may be needed.
   
   
3. Must the Florida lawyer be in Florida?
   No. As the vast majority of probate administrations are uncontested, neither the lawyer nor the personal representative ever attends court but handles all the legal documents by mail. When a personal appearance in court is required, we have contacts in Florida who can be instructed for that limited purpose. 
   
   
4. Is my U.K. will valid in Florida?
   If your will was valid where it was executed, then it will generally be valid in Florida. For the best possible results, however, we recommend that U.K. residents have Florida Wills (or a revocable living trust) because proving a foreign will invariably gives rise to delay and administrative difficulties.
   
   
5. Who can be a Florida Personal Representative?
   An individual must be either a resident of Florida, or a spouse, sibling, parent, child, or certain other close relative, to serve as personal representative. The nominated personal representative has preference to serve. If the deceased did not leave a will or the will was invalid, the surviving spouse has preference, with second preference to the person selected by a majority of the heirs. The personal representative could be an individual, bank, or trust company, subject to certain restrictions. 
   
   
6. Do all estates in Florida have to go through formal probate administration?
   No. Very small estates without land may qualify for “disposition without administration” and some estates may qualify for summary administration which is faster and less expensive. If the deceased has been dead for more than two years, the estate can be handled in summary administration.
   
   There are two types of administration of a deceased’s estate (and two non-administrative proceedings):
   
   i) FORMAL ADMINISTRATION is used when the assets include land or other assets that exceed $75,000 in value or where it is necessary to appoint a personal representative to administer the estate.
   
   ii) SUMMARY ADMINISTRATION is used if the assets that are solely in the deceased's name do not exceed $75,000. This procedure also is used if the deceased has been dead for more than two years or there is a provision for payment of creditors' claims.
   
   iii) DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION is a non-administrative proceeding. This proceeding is filed to request release of personal property (not land), the value of which may not exceed $6,000.
   
   iv) NON-RESIDENT PROCEDURE: This alternative to Formal Administration is only available for those who were not Florida residents at death. This proceeding allows the will of a nonresident to be admitted, if certain requirements are met and the will devises Florida land or any right in Florida land. When admitted to record in any Florida county where the land is located, the "foreign will" serves to pass title to the land as if the will had been admitted to probate. This procedure is available only if either two years have passed from death or the domiciliary personal representative has been discharged and there has been no estate administration in Florida.
   
   
7. What if there is a revocable living trust?
   A revocable living trust is a legal document that transfers assets to trustees for the benefit of named beneficiaries or a class of beneficiaries. The living trust is often used to avoid probate.
   
   
8. What about U.S. inheritance taxes?
   Like many U.S. states, Florida only taxes where federal estate taxes are due and then takes a fraction of the total tax payable. For a general explanation of estates subject to federal estate tax, please click here.
   
   
9. What if the deceased left no will?
   Florida has an “intestate succession” law, which states that certain persons receive the estate. If there is a surviving spouse but no “lineal descendants” (children, grandchildren, or great-grandchildren, natural or adoptive), then the spouse gets the entire estate. If there are lineal descendants, the spouse gets at least half the estate, but the descendants get some part also. If there is no surviving spouse and no lineal descendants, then the estate goes to any surviving parents. If there are no surviving parents, then the estate will go to other relatives, starting with brothers and sisters.
   
   
10. What if there are not enough assets in the estate to pay all of the deceased’s debts?
    Florida law has a stated priority of claims, in which some claims—such as funeral expenses and final medical bills—come first. Please speak to us in this event. There may not be a need to bring probate proceedings.

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