Florida Law contains provisions for Wills to be self-proving. That is, if the Will is filled out in accordance with the provisions provided for by Statute there is no need to locate the witnesses to the Will in order for the Will to be admitted to probate. Although a will from another State may be admitted to probate in Florida, it must comply with the requirements and formalities of Florida Statutes.

While generally a person may dispose of his property in any way he or she sees fit, there are some limitations on giving property by will contained in the Florida Constitution and in Florida Statutes. Except in very specific circumstances, a residence and adjoining lands owned by a decedent who is survived by a spouse or minor child is a Florida Homestead and must be conveyed to the spouse and/or minor child. A spouse also has the right to elect to take thirty (30%) per cent of the probate assets in the event that the Will provides less than that amount, and the spouse may under certain circumstances be entitled to fifty (50%) per cent of the probate assets.

In addition to declaring who will receive your property on your death, a Florida Will may also name a personal representative (executor) to manage the estate, a trustee to provide care or dispense funds to a beneficiary and name a guardian for your minor children. A Florida Will may also waive the requirement and expense of bonding your personal representative, permit the sale of real estate or other estate assets without Court approval, and decide who bears tax burdens. In the event that you die without a will, the Court will decide these and other matters for you.

A Living Will permits a person to give directions as to the use of life prolonging procedures, including a declaration to withhold food and water under certain circumstances. Florida has statutory requirements for this declaration and a competent attorney should provide advice and prepare the necessary document in accordance with your desires and instructions.

It has become popular in recent years to avoid probate in order to save on the expense and time involved in probate as well as to save on estate taxes. While a revocable Trust, sometimes called a living Trust, has been praised as the answer to the time and expense of probate, such a Trust is not suitable for every situation. Under certain circumstances Probate of a Will may be accomplished relatively quickly and inexpensively. Further, a decedent may leave up to $600,000 to a spouse without incurring any estate tax whatsoever.

On the other hand, the use of a Trust avoids the transfer of your assets through a court proceeding, can result in care being provided in the event of incapacity without the necessity of the Court appointment of a Guardian, can provide additional protection against claims of creditors and can under certain circumstances save on estate taxes. However, the creation of a Trust, transfer of assets into the Trust and administration of the Trust can be costly and time consuming.

While each situation is different, an attorney can properly advise you as to what is best for your own situation.

Probate involves the Court supervised process for gathering the decedent's assets, paying any taxes, claims or expenses of the decedent and distributing the remaining assets in accordance with the provisions of the will or in accordance with law if no will exists.

There are three types of Probate procedures in Florida:

1. Formal Administration is required for estates involving more than $60,000.00, requires the publication of a Notice of Administration to identify creditors and the expiration of a ninety day claim period prior to distribution of estate assets and closing of the Estate.

2. Family Administration is limited to estates with beneficiaries consisting of a spouse, lineal descendants (children or grandchildren) or lineal ascendants (parents or grandparents) and probatable assets with a value of less than $60,000.00. The persons who receive the estate assets remain liable to creditors of the decedent for two years after date of death.

3. Summary Administration can be utilized if the value of the estate is $25,000.00 or if the decedent is dead for more than two years. The persons who receive the estate assets remain liable to creditors of the decedent for two years after date of death unless a Notice of Administration is published.

A Guardianship is a court proceeding in which the rights and property of an incapacitated person known as a Ward are exercised by another person known as the Guardian.

Any person may file a Petition for Incapacity which results in the Court appointing a committee of three persons, usually two physicians and a lay person to examine the person, determine if the alleged Ward is incapacitated and report their findings to the Court. The Judge will then determine whether the alleged Ward is in fact incapacitated, to what extent and appoint a Guardian to care for the person and/or their property. The appointment of a Guardian may result in the Ward's loss of control of his or her income, financial assets and other property, the right to decide where to live, the right to drive, vote, marry and make other decisions pertaining to their life.

A Guardian is accountable to the Court, may have to undergo training and post a bond, and will be required to file annual accountings to be approved by the Court. The Ward may have the Guardianship terminated or modified if full or partial capacity is restored.

For additional information regarding Florida Law on specific Will, Probate or Guardianship matters, you should contact an experienced Florida attorney.
 

© 1997 Mark Perlman