Reports | March 23, 2023 | Personal Injury
Probate is the process of identifying the deceased party’s assets, paying their debts, and allocating the remaining assets to whomever they choose in their will. If all their assets have titles in their name, their estate will go through the less formal probate administration. Assets that are jointly titled might require different procedures depending on the type of joint interest. Reach out to a wrongful death lawyer.
Suppose someone dies due to another party’s negligent, intentional, or careless actions or inactions. In that case, their family members and the personal representative of the estate have the right to pursue a wrongful death lawsuit.
In general, if the deceased person might have filed a viable personal injury claim if they had survived their injuries or illness, family members and the personal representative can file a wrongful death claim on their behalf.
However, the wrongful death lawsuit process is also subject to the probate process and laws, which differ from state to state. If you believe you have the right to pursue a wrongful death claim on behalf of a deceased loved one, you must contact an experienced wrongful death attorney who can help ensure both processes go smoothly and according to Florida’s probate and wrongful death laws.
Last Will and Testament
A last will and testament concerns issues after your death and is the most known estate planning document. It ensures that your assets go to the people you want to have them in the appropriate amounts after your estate finishes the probate process. However, wills are subject to various spousal claims.
You can also designate the individual(s) you want to be your personal representative with your will. This person will be responsible for administering your probate estate. They are to provide notice to your creditors upon your death. Your personal representative will represent your estate in the lawsuit if a wrongful death claim is necessary after your death.
Once they pay any claims and legal costs, your personal representative must distribute your assets to the beneficiaries of your estate. If you don’t appoint a personal representative, the court will appoint one, which is usually a family member. When family members can’t agree on who should have this role, they may turn to litigation. By naming a representative in your will, you can prevent these disputes.
In Florida, the following parties have priority to serve as a personal representative if the decedent does not already name one:
- The surviving spouse
- The person selected by a majority in interest of the heirs
- The heir nearest in degree or best qualified as chosen by the court
- Any capable person appointed by the court
Properly Executing a Will
You cannot simply write a will on a piece of paper with your signature. Florida probate courts are particular about determining the validity of a will. If you take the time to draft a will, you want it to be enforceable upon your death.
- Sign at the end of your will
- Have two witnesses observe or acknowledge your signing
Florida law allows one witness to be an interested person who stands to inherit property according to the will. However, most attorneys advise against this.
Your will doesn’t require notarization; however, the easiest way to ensure the probate court will accept it is to go to a notary. This way, the probate court won’t have to contact the witnesses and have them come to court upon your death. When you sign your will or anytime after, you and your witnesses can go to a notary to sign an affidavit proving who you are and that each knew you signed the will.
By involving a probate lawyer, you can rest assured that the court will accept your last will and testament.
Who Is Part of a Survival Claim?
While the personal representative alone files any necessary wrongful death claims, they file the claim on behalf of the deceased person’s estate and any surviving family members. These might include the surviving spouse, children, parents, and any blood relatives or adoptive siblings who were dependent on the decedent for support.
The personal representative must name all eligible claimants when filing the claim. Any damages from the wrongful death claim will go to these parties under Florida state law.
You should note, however, that individuals who do not have the right to some of the wrongful death lawsuit proceeds might still have other methods of inheriting from the decedent. In addition, the wrongful death lawsuit doesn’t typically impact a person’s inheritance from the decedent’s estate or receipt of life insurance proceeds.
Dying Intestate vs. Testate
People who pass away in Florida without a last will and testament die “intestate.” A person who dies with a last will and testament dies “testate.”
Any assets in your name must be distributed according to Florida intestacy laws if you die intestate. These laws govern the shares that a spouse and lineal descendants receive. You won’t get a say in what happens to your assets. Those who aren’t married and don’t have descendants may have their estate passed to relatives they didn’t even know they had.
Furthermore, without a will, the status of your marriage won’t matter. You might have an estranged spouse or be in the middle of divorce proceedings when you die. Your spouse is legally entitled to a portion of your estate without a will. In situations where the decedent spouse has executed a will, it can minimize the amount their spouse is entitled to receive.
If you have a last will and testament, the distribution of your assets will happen according to your will. Without a will, your assets will not go to a boyfriend or girlfriend, friends, stepchildren, nieces, nephews, or anyone else you may have wanted to receive some of your property.
By working with an experienced Florida probate lawyer to ensure you have a complete will, you can make the probate process much quicker and easier for your family members. Whether you have a will or not, your estate must go through probate court.
What Is Probate?
Probate is a legal process occurring after someone’s death. It determines if the deceased person’s will is valid and if there is an appointed executor of the estate. The executor manages the estate and distributes its assets according to the will. If no will exists, probate will determine who should receive the decedent’s assets and in what amounts. It’s helpful to have representation from a seasoned Florida probate attorney during this often-complex process.
The Florida Probate Process
Probate is how the probate court gives the personal representative the legal authority to act and make decisions for the estate.
The probate process includes:
- Submitting the last will and testament for the court’s review to verify that it meets Florida’s requirements for a validly executed will
- Informing the decedent’s creditors and heirs that the will is in probate
- Changing the ownership of the decedent’s property and assets to the name of the estate
- Calculating the worth of the estate
- Paying all debts and taxes the decedent owes
- Allocating the assets to the estate’s beneficiaries and heirs
Without previous knowledge and experience in this area of law, it can be challenging to navigate this necessary process. Having the representation of a skilled probate attorney can help immensely.
Probate Administration in Florida
Florida probate law distinguishes two types of probate administration: formal administration and summary administration. Assets that must go through the probate process include tangible property such as bank accounts, investment accounts, and real estate titled in the decedent’s name.
Unfortunately, without proper estate planning, the deceased’s retirement accounts (IRAs) and life insurance policies can unintentionally become part of the probate estate. A decedent’s assets must first cover the probate proceeding fees, then any funeral expenses and outstanding debts. Lastly, the remainder of the estate will go to its designated beneficiaries.
If the decedent died less than two years ago, and their probate estate is worth a minimum of $75,000, Florida law requires the formal administration of a probate estate. The formal probate administration mandates the designation of a qualified person as the estate’s personal representative.
The personal representative is responsible for notifying creditors of the decedent’s death so they have the opportunity to submit claims against the estate. Once that phase is complete, the personal representative must distribute any remaining assets of the estate to its beneficiaries. The formal probate process in Florida can take several months or even years to complete.
Low-value estates in Florida have the option to use summary administration. Families can use this process if the decedent doesn’t have a will or in cases with a will that doesn’t address administration. They might also use summary administration when a decedent has been dead for more than two years, or the estate has a value of less than $75,000.
In the summary administration process, a personal representative isn’t necessary. By law, the probate court will order the distribution of assets to those entitled under Florida law or named in the will.
Suppose the court accepts the petition summary administration petition. In that case, it will issue an order of summary administration, allowing the decedent’s assets to be distributed to beneficiaries immediately. As a result, summary administration can usually wrap up much faster than formal probate administration.
What Does a Florida Probate Attorney Do?
A Florida probate lawyer isn’t a general practice attorney. Instead, they focus on estate administration and the probate process. They are well-versed in the details of probate and can assist you every step of the way.
Probate lawyers can:
- Complete and file the necessary documents with the appropriate court.
- Arrange for service to all the parties involved.
- Advise you concerning your next steps.
- Advise estate executors on how to proceed in estate representation the estate once they are appointed.
- Guide estate planning, probate, and trust administration matters.
- Represent clients before the Courts of the State of Florida addressing the administration of a probate estate, incapacity proceedings, and subsequent guardianship administration.
- Handle disputes surrounding the creation, administration, or distribution of property and other assets held in probate at both the trial and appellate levels.
- Assist with drafting last will and testaments, trusts, advanced directives, and related tax consequences.
Probate lawyers practice all aspects of estate planning and probate administration in the state of Florida. If necessary, probate lawyers can pursue the litigation in Florida courts.
Attorneys know that handling probate matters can be stressful and confusing for laypersons.
As such, they can assist you with:
- Identifying estate assets
- Gathering the assets
- Filing final income and estate tax returns
- Paying bills
- Making final distributions to the appropriate heirs
How Does a Wrongful Death Claim Work with Probate?
Under Florida law, if a wrongful death claim is necessary or appropriate, the decedent’s personal representative is responsible for pursuing the wrongful death action on behalf of the decedent’s estate and their survivors.
Note these two important points:
- The personal representative is the only person with the legal authority to bring a wrongful death action. As such, a wrongful death action claim can’t be initiated until probate administration starts and a personal representative is accepted per the deceased person’s will or the court appoints one.
- The decedent’s estate and survivors aren’t the same. The decedent’s estate may or may not include survivors. Considering this, not all interested parties will recover wrongful death damages.
Meet With an Experienced Florida Experienced Wrongful Death Lawyer
If you have suffered the recent loss of a family member, a wrongful lawyer can help you sort through the process of probate administration and filing a wrongful death claim in Florida. Reach out to a personal injury lawyer.
The estate must follow both of these processes according to Florida law, which can confuse and overwhelm anyone while are grieving and adjusting to life without a loved one. Reach out to a seasoned attorney today for help.