Lakeland Probate and Estate Planning Lawyer
Joshua W. Westcott

Frequently Asked Questions:

What is probate in Polk County, Florida?

Probate is a vast area of law; however, most people use the term probate interchangeably with the concept of administration of a decedent’s estate. Under Florida law (and in most jurisdictions throughout the United States), some level of court action is required in many cases in order to resolve the assets and debts of an individual who has passed away. The complexity of administering or “probating” an estate will depend on a number of factors, including whether the decedent left behind a will,  the assets involved, and the debts of the decedent when they passed away.

How do you know if probate is necessary?

Whether or not one needs to probate a decedent’s estate will depend mostly on how the decedent held assets during their lifetime. There are many assets, including real estate, vehicles, and bank accounts, that may be held or titled in such a way as to pass those assets to a beneficiary or other individual upon the decedent’s death without any further court action. On the other hand, assets not transferred outside of a decedent’s estate will need to be addressed through probate proceedings in the court.

There are certain circumstances where probate may be filed even when the estate does not have any assets, such as when the decedent’s property has been placed in a revocable trust beforehand, or when the only asset involved is the primary homestead of the decedent and will be transferred by will or in accordance with the Florida laws on intestacy. These particular issues are complex, and an attorney should be consulted so you have a proper understanding of how best to proceed in such circumstances.

Are there different types of probate in Florida?

Yes. Depending on the assets involved and how long it has been since the decedent has passed away, there are different probate proceedings that may be used.

Most estates will go through formal administration, which has several steps to complete and will generally take several months, and in some cases over a year, to complete. Additionally, formal administration requires the appointment of a “personal representative” of the estate, which is the individual responsible for handling the affairs of the estate during the administration process.

If the amount of assets involved is under a particular amount, a process called summary administration may be used. This is also the case when the decedent has been dead for over two years prior to the probate proceedings.

Summary administration is generally a less complicated process and can be accomplished in a much shorter timeframe. Nonetheless, caution should be taken when filing summary administration, especially when filed within two years of the decedent’s death, as there can be complications if the decedent owed any debts or when it may be unclear as to who is entitled to the assets of the estate.

There is also a procedure for estates with very few assets known as disposition without administration. This will be used when the assets in question do not exceed certain funeral and medical expenses of the decedent.

Do I need to pay the debts of the decedent?

Family members are not personally responsible for the debts of the decedent; however, creditors of the decedent may have a right to payment from the assets of the estate. There are several rules regarding what assets are available to pay the creditors of the decedent and in what order certain creditors are paid from those assets. There is also the responsibility to make reasonable efforts to identify any potential creditors of the estate in most circumstances, so it is a good idea to exercise caution and seek the proper legal advice prior to dealing with the assets of a decedent.

What do I do with a decedent’s original will when they have passed away?

In Florida, the person in custody of the original last will and testament of a decedent should file the will with the Clerk of Court in the county of residence of the decedent within ten days of learning of the death of the decedent. Failing to follow this provision may have legal consequences if court action is taken to compel the filing of the will.

What is homestead?

Homestead means different things in different circumstances under Florida law. Sometimes when people refer to homestead, they are talking about the ad valorem tax exemption given by the property appraisers office on a person’s primary home in Florida; however, in the context of an estate, homestead is generally referring to a specific provision in the Florida Constitution that protects a decedent’s primary home from their general creditors and places certain restrictions on how this property may be transferred. Dealing with real property in a Florida probate proceeding can be tricky, and it is best to consult with an attorney on issues relating to the decedent’s homestead.

Do I need to hire a lawyer to probate a decedent’s estate?

There are circumstances where you may be required to use the services of an attorney to complete the probate process, such as when formal administration is required and there are multiple beneficiaries of the estate other than the person petitioning to be appointed the personal representative. There are other instances where an attorney may not be required; however, due to the complexity of the legal issues involved with many estates, it is advisable to consult with a licensed attorney to determine your options.

What is Estate Planning in Polk County, Florida?

Estate planning in Florida involves the preparation of a comprehensive plan to manage an individual's assets and financial affairs in the event of their death or incapacitation. This process typically includes creating legal documents such as wills, trusts, powers of attorney, and advance healthcare directives. In Florida, estate planning is crucial due to specific state laws and considerations, such as the state's homestead laws, which protect the family home from creditors, and the absence of a state-level estate tax. Additionally, Florida's probate process can be complex and time-consuming, making proper estate planning essential to ensure the smooth transfer of assets, minimize taxes, and protect beneficiaries' interests. Consulting with a knowledgeable estate planning attorney in Florida is often recommended to navigate these legal intricacies and tailor a plan suited to individual needs and goals.

What is a Will in Florida?

A last will and testament in Florida is a legal document through which an individual, known as the testator, specifies how their assets and affairs should be handled after their death. This document allows the testator to designate beneficiaries who will inherit specific assets, appoint an executor to manage the estate's administration, and possibly name guardians for minor children. In Florida, for a will to be valid, it must adhere to certain legal requirements, such as being in writing, signed by the testator, and witnessed by at least two individuals. The will must be executed by someone at least 18 years of age and of sound mind. Having a properly executed will can help streamline the probate process, ensure that the testator's wishes are honored, and provide peace of mind for both the testator and their loved ones. It is also important to make sure that your will is self-authenticating to efficiently admit your will to probate proceedings in Florida. Legal advice is often recommended to ensure that the will is compliant with Florida's laws and effectively reflects the testator's intentions.

What is a Revocable Trust in Florida?

A revocable trust in Florida is a legal entity created to hold and manage an individual's assets during their lifetime and specify how those assets should be distributed after their death. One of the primary advantages of a revocable trust is that it allows the grantor, the person who creates the trust, to retain control over their assets while they are alive. This control includes the ability to modify, amend, or revoke the trust entirely if their circumstances or intentions change. A revocable trust is often used as a key component of estate planning in Florida because it may simplify,  and in some instances avoid,  the probate process, thereby ensuring a faster and more private distribution of assets to named beneficiaries. Additionally, it can provide financial management if the grantor becomes incapacitated, as a successor trustee can step in to manage the trust assets. However, since the trust is revocable, the assets are not protected from creditors during the grantor’s lifetime, and they remain part of the grantor’s taxable estate. Setting up a revocable trust typically involves drafting a trust agreement and transferring assets into the trust, and this process should be done with the guidance of an experienced estate planning attorney to ensure compliance with Florida laws and the grantor’s specific objectives.

What is a Power of Attorney in Florida?

A power of attorney in Florida is a legal document that authorizes an individual, known as the agent or attorney-in-fact, to act on behalf of another person, referred to as the principal, in legal or financial matters. This document is particularly significant in estate planning as it allows the principal to designate someone they trust to make important decisions, manage their financial affairs, or handle specific transactions if they become unable to do so themselves due to illness or incapacitation so long as the power of attorney is made durable. In Florida, a power of attorney can be either general, granting broad powers, or specific, limiting the agent’s authority to certain tasks. It is important to note that a power of attorney in Florida becomes effective immediately unless specified otherwise, and it must be signed by the principal in the presence of two witnesses and a notary public. Additionally, the agent must act in the best interests of the principal, adhering to the duties outlined in the document. Consulting with a knowledgeable attorney is advised to ensure the power of attorney is properly executed and aligned with Florida’s legal requirements and the principal's intentions.

What is a Heath Care Surrogate in Florida?

A health care surrogate in Florida is an individual designated through a legal document to make medical decisions on behalf of someone else, known as the principal, in the event that they become unable to make those decisions themselves. This role is a crucial component of estate planning, allowing the appointed surrogate to communicate the principal's healthcare preferences to doctors and medical staff, ensuring that their wishes regarding treatment options, surgeries, medications, and life-sustaining measures are followed. The designation of a health care surrogate must be documented in writing, signed by the principal, and witnessed by two individuals in order to be valid in Florida. It's also advisable for the principal to discuss their healthcare preferences with their surrogate in advance to ensure clear understanding and compliance with their wishes. Consulting with an attorney can help ensure that the health care surrogate designation complies with Florida law and effectively conveys the principal's healthcare directives.

What are Advance Directives in Florida?

In Florida, advance directives are legal documents that allow individuals to outline their preferences for medical care in the event that they become unable to communicate those preferences themselves due to illness or incapacity. These directives serve as a guide for healthcare providers and loved ones, ensuring that the individual's treatment preferences are respected and followed. Common types of advance directives in Florida include living wills and health care surrogate designations. A living will specifies the types of medical treatment a person wishes to receive or avoid, particularly concerning life-sustaining measures such as resuscitation or mechanical ventilation. The health care surrogate designation appoints a trusted person to make healthcare decisions on the individual's behalf. For these documents to be legally binding in Florida, they must be signed by the person creating them, known as the principal, and witnessed by two individuals. It's advisable to consult with a knowledgeable attorney to ensure that the advance directives are clearly articulated, comply with state laws, and accurately reflect the individual's healthcare wishes.

What is a Ladybird Life Estate Deed in Florida?

A Lady Bird Life Estate Deed, also known as an enhanced life estate deed, is a legal tool used in Florida to transfer property upon the death of the owner without the need for probate. This deed allows the grantor, who is also the life tenant, to retain full control and use of the property during their lifetime. The grantor can sell, mortgage, or otherwise manage the property without requiring the consent of the remainder beneficiaries, who are the designated heirs. Upon the grantor's death, the property automatically passes to these beneficiaries, bypassing the probate process. This type of deed is popular in Florida due to its flexibility and the ability to maintain control over the property while ensuring a smooth transition to heirs upon death.

What are transfer on death beneficiaries in Florida?

In Florida, Transfer on Death (TOD) beneficiaries can be designated for various types of bank accounts, including checking, savings, and other financial accounts. This designation allows the account holder to specify one or more beneficiaries who will automatically inherit the account's assets upon the account holder's death, bypassing the probate process. This can be a beneficial tool for estate planning, as it provides a straightforward mechanism to ensure that funds are transferred directly to the intended recipients without delay. The account holder retains full control over the account during their lifetime and can modify or revoke the beneficiary designation at any time. This ensures that the account holder's wishes are respected and that their assets are distributed efficiently according to their plans.