Probate Law

What happens to probate assets if there is no will?
If there is a surviving Spouse and no children, the surviving spouse takes all. If there is a surviving spouse and lineal descendants:
The surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half unless one or more of which lineal descendants are not also lineal descendants of the surviving spouse then the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

If there are lineal descendants the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.

If there is no Surviving Spouse or lineal descendants the property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

There are also further exceptions that apply in some situations.

What is a personal representative and what does the personal representative do?

  • The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
  • Identify, gather, value and safeguard probate assets.
  • Publish a “notice to creditors” in a local newspaper, giving notice of the administration of the estate and of requirements to file claims and other papers relating to the estate and serve a “notice of administration” on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed.
  • Object to improper claims and defend suits brought on such claims.
  • Pay valid claims.
  • File tax returns.
  • Pay taxes.
  • Employ necessary professionals to assist.
  • Pay administrative expenses.
  • Distribute statutory amounts or assets to the surviving spouse or family.
  • Distribute assets to beneficiaries.
  • Close probate administration.

What rights does the surviving family have in the probate estate?
Florida public policy protects the surviving spouse and certain surviving children from total disinheritance. Absent a marital agreement to the contrary, a surviving spouse may have homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have homestead rights, pretermitted child rights, family allowance rights, and exempt property rights.

 

 

 


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