Probate and Wills Questions & Answers

1. What is Probate?

Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries. In most Florida counties, the probate system is conducted in a specialized probate division of the Circuit Court, under the oversight of one or more experienced probate judges.


2. How is Probate Initiated in Florida?

Although any beneficiary or creditor can initiate probate, normally the person named in the will as Personal Representative, also known as the executor in other states, starts the process by filing the original will with the court and filing a Petition for Administration with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition for Administration.


3. Who is Eligible to Serve as Personal Representative for a Florida Estate?

A bank or trust company operating in Florida, any individual who is resident in Florida, and a spouse or close relative who is not necessarily resident in Florida are all eligible to serve as the Personal Representative. Nonrelatives who are not resident in Florida are not eligible to serve as Personal Representative.


4. How is the Personal Representative Chosen?

If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, the person chosen by a majority of the beneficiaries in interest of the estate shall choose the Personal Representative. If there is no will, Florida law provides that the surviving spouse may serve, or, if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest shall serve.


5. Is the Personal Representative Required to Retain an Attorney?

In Florida, the Personal Representative is required in almost all probate estate to retain a Florida probate attorney. Although the Florida probate forms are available to the public, these are of no use to a non attorney.


6. How is the Personal Representative Compensated?

Florida law provides a compensation schedule for the Personal Representative, based on a percentage of the assets of the probate estate.


7. Is the Family of a Deceased Person Entitled to a Portion of the Estate?

Florida law provides for a family allowance for the surviving spouse and minor children of the deceased, as well as an elective share for a surviving spouse, thirty percent of the estate, if the surviving spouse would prefer the elective share to that left under the terms of the will. A Florida resident is entitled to disinherit adult children, for any or no reason. Of course, if it can be shown that the adult children were disinherited as a result of the influence of another, they may have recourse through the probate court.


8. What Assets are Subject to Probate?

Assets owned by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as "Joint Tenants with Right of Survivorship," or bank accounts titled as "Transfer On Death" are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process, particularly in the case of a surviving spouse choosing to take an elective share against the estate. This would include pay on death accounts, jointly titled accounts, and life insurance proceeds.


9. How is Distribution of the Estate Handled if there is no Will?

Florida law sets forth rules for the distribution of an estate if there is no will.

If these is a surviving spouse and no lineal descendants, the surviving spouse is entitled to the entire estate.

If there is a surviving spouse with lineal descendants, and all lineal descendants are also descendants of the surviving spouse, the surviving spouse is entitled to the first $20,000 of the probate estate, plus one-half of the remainder of the probate estate. The descendants share in equal portions the remainder of the estate.

If there is a surviving spouse with lineal descendants, and not all lineal desdendants are also descendants of the surviving spouse, the surviving spouse is entitled to one-half of the probate estate, and the descendants of the deceased share the other half of the estate in equal shares.

If there is no surviving spouse and there are descendants, each child is entitled to an equal share, with the children of a deceased child sharing the share of their deceased parent.

If there is no surviving spouse and no children or other descendants, Florida law provides additional rules for distributing an estate in such circumstances.


10. Who is responsible for paying estate taxes?

Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate. The estate tax return, Form 706, is filed by the Personal Representative. The Form 706 is due to be filed 9 months after the date of death.

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1. When can a will be challenged?

A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation. After death, the Personal Representative will issue a Notice of Administration, which starts a 90-day period for challenging a will or the appointment of the Personal Representative.

2. Can a will be challenged if it was not prepared properly?

Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements. A will can also be thrown out if it can be proven to be a forgery or to have been tampered with. Florida courts have declared wills to be invalid that were not witnessed properly, including a situation where the witness was in an adjoining room when the will was signed and not in the immediate presence of the testator.

3. Can a will be challenged if the maker was suffering from dementia or Alzheimer's?

Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer's, or psychosis, or through the testimony of witnesses as to the irrational conduct of the testator around the time the will was executed.

4. Can a will be challenged if another person encouraged the preparation of a will?

Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who "befriend" the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. Please read Estate of Carpenter, which is the most important undue influence case in Florida.

5. Can a will that leaves everything to a second spouse instead of children from a first marriage be challenged?

Florida courts are reluctant to overturn bequests to a surviving spouse under an undue influence claim, given the importance of marriage in our society. Nonetheless, an egregious set of facts could warrant striking of a bequest to a surviving spouse, although the surviving spouse will be entitled to the elective share, absent a valid marital agreement to the contrary.

6. Can I get a jury trial in a will contest case?

Almost all will contests are heard by the probate division of the circuit court, where jury trials are not permitted.

7. I want to challenge a will, but the will says that anyone who challenges the will is automatically entitled to nothing. I am already entitled to a small bequest under the will and don't want to risk losing it. What should I do?

Florida does not recognize "no contest" clauses in wills or trusts. In any litigation in Florida over a will or trust, such a clause will be ignored.

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