Cape Coral and Fort Myers Probate Attorneys

I am Robert C. Adamski, a lawyer in Cape Coral, Florida, with a statewide probate and estate administration practice. Since 1979, I have compassionately assisted clients with difficult and unexpected probate issues in Florida.

Probate is the legal process by which a person's will is validated by the probate court. The provisions of the will dictate how the individual's debts are paid and assets are distributed upon death. Estate administration includes the probate process as well as non-probate transfers of the deceased's assets such as life insurance, annuities, qualified plans, trust assets and compliance with applicable estate tax requirements.

If you have questions regarding probate or trust administration in Florida, do not hesitate to contact an experienced Cape Coral probate attorney today.

Trust Administration From Florida Lawyers

I assist the personal representative of the estate in the gathering, valuation, accounting and distribution of the decedent's assets. I prepare appropriate documents to release liens on a decedent's estate. It is my responsibility to assure that all steps are properly taken to carry out the decedent's intent in accordance with the law. I often do primary and ancillary probate services for out-of-state clients with property in Florida as well.

Settling the Estate in Florida

The term "settling the estate" refers to handling the transfer of the decedent's assets.

At death the most immediate concern is the funeral arrangements. If the decedent has made his or her own arrangements the task is much easier. In any case the arrangements should be made and the funeral handled before the estate administration begins. The funeral expense can be paid from the estate if the expense is not prepaid by the decedent.

It is vital to locate the decedent's important documents. These include the last will and/or trust, bank account records, deeds, brokerage account records, last year's tax return, etc. You will not need complete records to begin administering the estate.

Administrators

There are two types of administrators in Florida. Trustees manage trust assets. Probate estates are administered by a personal representative.

All administrators:

  • Are empowered to and should hire attorneys, accountants, appraisers and other professionals to assist them. These individuals are paid from the estate assets.
  • Are entitled to a fee for services rendered.
  • Owe a fiduciary duty to the beneficiaries and are personally liable if they breach that duty.

Types of Assets

There are a few basic types of assets you should be aware of to expedite distribution. The type depends on how the decedent owned the asset:

  • Solely owned assets (held in the decedent's name alone) are subject to probate estate administration.
  • Assets held in the decedent's trust are not subject to probate estate administration and can generally be distributed shortly after death.
  • Jointly owned assets (owned by the decedent and others with rights of survivorship) are owned by the survivors and can be distributed immediately after death with no probate estate administration.
  • Assets where a beneficiary is named such as an insurance policy, annuity or bank account with a "pay on death" provision can be distributed immediately after death with no probate estate administration.

Safe Deposit Boxes

If the decedent owned a safe deposit box access is limited to those the decedent granted access to during his or her life and others allowed by law to retrieve the contents. Locating any safe deposit boxes is important because the most valuable items are usually kept there.

Military Papers

Copies of military discharge papers should be obtained. If an individual who served in the armed forces dies, the Veterans Administration will provide a headstone marker, and an American flag, if desired.

The Lawyer's Role

The lawyer you choose to assist you will review any will or trust the decedent left, review the inventory of assets and creditors, and advise you on the necessary legal proceedings necessary to transfer the decedent's assets to the beneficiaries. Your lawyer should inform you of the costs, fees and time expected to conclude the proceedings. Attorney fees are addressed in Florida statutes. A fee of approximately three percent is presumed to be reasonable, but there are exceptions and reasons to both decrease the fee and increase the fee. You should be satisfied that the fee being charged is reasonable. Do not be afraid to ask questions.

When visiting the lawyer for the first time, it is not necessary to have complete records or original documents. Bring whatever documents you have gathered. It is necessary to provide full names and addresses of beneficiaries, administrators and others whom the lawyer must contact.

The Settlement Process

The surviving spouse or adult beneficiaries should be able to settle the estate without much difficulty. As discussed above, assets owned jointly or with a beneficiary designation are not subject to probate or trust administration.

These are the most common types of administration:

  • TRUST ADMINISTRATION: This includes assets held in a trust created during the decedent's lifetime and are administered under the terms of the trust. These assets are not subject to probate administration. However, trust administration is often as complicated as probate administration. The trustee must file a Notice of Trust with the probate court and the notice of acceptance of the trustee's position must be given to beneficiaries.
  • PROBATE ADMINISTRATION: If the decedent owned any assets in his or her sole name at death, those assets are subject to a probate administration.

Types of Probate Administration:

The type of administration necessary to transfer the decedent's assets to the beneficiaries varies with the value of the estate and the necessity to appoint an administrator:

  • Formal administration: If the estate is valued at greater than $75,000, or if an administrator is needed to handle the assets a "formal administration" is necessary. In a formal probate administration an administrator, known as a "personal representative" is appointed. He or she gathers the assets, pays the bills, settles with creditors, sells or distributes assets as required, gives an accounting to the beneficiaries and closes the estate. A formal administration consumes from five to eight months, depending on the situation in an estate which is not subject to federal estate tax. The filing of estate tax returns always delays final settlement.
  • Summary administration: In a summary administration for estates of less than $75,000, or where the decedent has been dead for more than two years, the process is less complicated. An administrator is not appointed and the assets are distributed by court order directly to the beneficiaries. If the assets consist of real estate or other property which must be sold, the beneficiaries must cooperate in the sale after administration. If they cannot cooperate a formal administration should be conducted.
  • Family administration: This administration is available but rarely used because of its limited scope.

Life Insurance and Annuities

Life insurance policies and annuity contracts should be given to the beneficiaries of the policy or annuity. It is important that the primary estate administrator or trustee be fully aware of the amounts paid in each instance and to whom it is paid. This information must be reported on estate tax returns. The insurance and annuity proceeds are usually not subject to probate or trust administration because they are paid directly to the beneficiaries. Each company will require a certified copy of the death certificate.

Assets Located Out of State

If the estate is being probated in Florida all personal property, wherever located, is subject to the Florida administration. Personal property includes everything but real estate. Therefore, if a bank account which is held in a bank in Ohio is owned by a Florida decedent, the bank account must be probated in the Florida proceeding. But if the same decedent owns real estate in Ohio, a separate proceeding must be held in Ohio to transfer title of the real estate to the beneficiaries.

Tax Returns

Even though a person is deceased an income tax return must be filed for his or her year of death. If the individual is married a joint return can be filed.

An estate tax return may be required as well. The estate for federal estate tax purposes includes all personal and real property a person held an interest in, including jointly owned property and other property which do not require probate or trust administration such as life insurance proceeds and retirement accounts.

Creditors

Creditors of the decedent are entitled to be paid from both probate and trust assets. But there are many circumstances where creditors' claims can be avoided. If the probate or trust estates consist of only exempt assets and the homestead of the decedent, the creditors need not be paid.

"Exempt" assets as well as the decedent's "homestead" cannot be reached by creditors if those assets go to appropriate persons, including the surviving spouse, children of the decedent and other family members.

Surviving Spouse's Rights

A surviving spouse of a Florida decedent is entitled to special rights not available to others:

  • The right to an "Elective Share" equal to 30 percent of the decedent's assets.
  • The homestead exemption from creditors and the right to a life estate in the decedent's homestead if not owned jointly with the surviving spouse, or the option to take a 1/2 interest.
  • Right to exempt property discussed above.
  • Family allowance.
  • Preference in being appointed personal representative.

Contact Cape Coral, Florida, probate and trust administration attorney Robert Adamski for all your estate planning and probate needs. Se habla español.