4465 Baymeadows Road
Suite #3
Jacksonville, FL 32217

Phone: 904-733-9080
Fax: 844-570-2242

FOREFRONT LAW

FAQ

Estate Planning

The way in which inheritance works in Florida will depend on the type of asset and whether the decedent died with a will or without a will. People who have valid wills in place will have their assets passed to the beneficiaries that they have named in their wills according to the wills’ terms. If a will exists, the person who has it must file it with the probate court within 10 days of the decedent’s death. The estate may then go through one of three processes, depending on the estate’s value.

If the decedent died without a will, the estate will be probated and the assets will be passed according to the state’s laws of intestate succession. Finally, some types of assets will not go through the probate process and will pass to the designated beneficiaries directly. These assets include the following:

  • Living trusts
  • Jointly owned homes or bank accounts
  • Payable-on-death bank accounts
  • Life insurance proceeds
  • Retirement accounts
  • Transfer-on-death accounts

What spouses will inherit from their partners when there is no will depends on whether the decedents had descendants in addition to their spouses. It also will depend on whether the decedents had assets that pass outside of the probate estate.

If a decedent dies and does not have any children, his or her spouse will inherit the entire estate. If the decedent and the spouse shared children, the spouse will inherit everything. If the decedent and the spouse shared children but the spouse also had a child from a previous relationship, the spouse will inherit one-half of the estate and the children of the marriage will receive the other half.

Finally, if the decedent had children from a different relationship, the spouse will inherit half of the estate and the children of the decedent will inherit the other half.

When someone dies without a will, his or her property will pass by intestate succession to his or her heirs. When there are several heirs who inherit the land, it is known as heir property. Each of the heirs who have an ownership interest in the land will have the right to use the entire property. Problems can arise when one heir decides that he or she wants to sell his or her ownership interest in the land since the heirs will own it as tenants in common.

Each heir will have a right to sell his or her tenancy in common. If it is sold, the purchaser will then have the same rights to the property as the heir previously had. To avoid this problem, an heir can ask for the property to be partitioned. This means that the property will be divided among the heirs according to the percentage of ownership that each has.

Finally, if the property cannot be partitioned, it can be sold. The proceeds would then be divided between the heirs according to their individual percentages of ownership.

In general, an inheritance that is received by one spouse is not considered to be a part of the marital estate, which means an ex-spouse should not be able to go after an inheritance. If the inheritance was received prior to the marriage, it should be considered that spouse’s separate property.

However, if the spouse who received the inheritance commingled the funds with the marital funds, it may lose its exemption as separate property. In that case, it would be possible for an ex-spouse to go after an inheritance in divorce.

If the inheritance was received during the marriage, it will still be considered to be the separate property of the spouse who received it. Again, however, if commingling has occurred, it can lose its separate property exemption and may become part of the marital estate.

Someone who receives an inheritance before he or she gets married can preserve its separate nature by entering into a prenuptial agreement. A spouse who receives an inheritance during a marriage can keep it separate by depositing the proceeds into a separate bank account and not commingling the proceeds with the marital assets.

Inherited money that is inherited by only one spouse will normally not be included in a Florida divorce settlement. As long as the spouse has preserved its separate nature, the inherited money will be considered to be his or her separate property. Separate property is not divided in divorces in Florida.

However, if the money has been commingled, it can lose its separate nature. For example, if the spouse who inherits the money deposits it into a joint bank account, it will be considered to be commingled and will be included in any divorce settlement.

A spouse who inherits money can preserve its separate nature through a prenuptial or antenuptial agreement with the other spouse. He or she can also preserve its separate nature by keeping the money in a separate account and not commingling them with any marital funds.

A last will and testament is a legal document that is created by a testator while he or she is still alive. As long as it is valid and executed according to the laws of Florida, it will not be able to be changed after the testator dies. A testator may change his or her will while he or she is alive through a codicil.

The testator may also revoke a will by destroying it, writing a codicil, or by writing a new will. The testator must have the mental capacity to change or revoke a will, and the changes cannot be made because of fraud, duress, or coercion.

Interested parties may challenge the validity of a will after the testator dies. However, most challenges will not be successful. Courts view wills as representing the voice of the testator, and there is a presumption that wills are valid.

If an interested party is able to prove that the will is not valid or that a provision of the will is not valid, the court may disregard the invalid provision or may disregard the will in its entirety. If that occurs, the assets will be distributed under the state’s intestacy laws.

When someone dies in Florida without a will, his or her assets and property will be distributed to his or her heirs under the state’s laws of intestate succession. These laws state who will inherit when someone dies without a will.

In general, the spouses and children of people who die intestate will inherit their property and assets. If there aren’t any children or spouses, the assets and property may be passed to the parents, siblings, nephews, nieces, or grandparents. If none of these parties survive, the assets may be passed to relatives who are more distant. Finally, if the intestate person has no surviving family members, the property and assets will go to the state.

Florida does not have an estate tax or an inheritance tax. This means that people will not have to worry about paying these types of taxes when they inherit property and assets in the state. However, the federal government does have an estate tax. If a person who dies has a very substantial estate, it is possible that an estate tax return will have to be filed with the federal government.

In 2019, the estate tax and gift exemption is $11.4 million per spouse. A married couple can leave up to $22.8 million without estate taxes being assessed, and an unmarried person can leave $11.4 million. While most estates will not exceed the estate tax exemption, the final state and federal tax returns for the decedent will still need to be filed by April 15 of the year following his or her death.

Not all estates will have to go through probate in Florida. Some types of assets are excluded from probate such as assets that are held jointly, assets that are held by living trusts, and other accounts such as those that are payable on death, retirement accounts, and life insurance policies.

Estates that are small may also avoid probate. For example, if a person dies without owning any real estate, his or her assets may pass to his or her heirs through a disposition without administration procedure. This process is available when the decedent had no real estate and had assets that are exempt from creditors or do not total more than the cost of his or her final expenses.

A summary administration process may be available in some cases. This is an expedited probate process that is available for people who died more than two years ago or when the total value of their estates do not exceed $75,000.

An attorney is required in Florida to probate an estate, whether summary, formal and ancillary but an attorney is not required for disposition of personal property without administration. The probate laws are complex, and there are many duties that are involved.

An executor must fulfill all of the legal duties correctly, or he or she may be personally liable to the beneficiaries. An attorney can help you to make certain that the will is probated correctly and to ensure that you avoid making potentially costly mistakes.

Divorce

There is no standard length of time because every divorce case is unique. In general, however, an uncontested divorce will not take as long as a contested divorce. If both parties are in agreement as to the terms of the divorce, the process may take only a few weeks. If the parties are not in agreement, it may take six months or more.  The guidance of a qualified divorce lawyer, particularly in a contested divorce, can help ensure that the process moves forward more smoothly and all your divorce related questions are addressed.

In Florida—a no-fault divorce state—either spouse can seek a divorce without having to provide any reason other than irreconcilable differences. In other words, the only requirement for dissolution of the marriage is for one of the spouses is to provide proof that the marriage is irretrievably broken.

Both parties can work to come to an agreement on division of property themselves. Otherwise, an agreement can be reached through the mediation process or the court will make the decision.

The court will start with the presumption that assets will be equally divided. The Florida Standard of equitable distribution determines the way spouses in Florida divide their property and debts during a divorce. Florida law requires an equitable division of assets with equitable meaning equal in most instances. Several factors can be taken into consideration as well, including:

  • How long the parties were married
  • The contributions of each party to the marriage, such as services as a homemaker and contributions to the education and care of children
  • Whether one spouse helped the other’s career or education by pausing his or her own
  • Whether one spouse wasted shared marital assets
  • The economic circumstances of both parties

The court can order one party to pay periodic payments, a lump sum, or both. Types of alimony awarded in Florida include:

  • Bridge-the-gap alimony is intended to assist one party transition to being single for a limited length of time.
  • Rehabilitative alimony may be awarded to help one party gain new skills or credentials or improve previous ones in order to become self-sufficient. There must be a well-defined rehabilitation plan in place. Rehabilitative alimony can end when the plan is completed, or if the recipient doesn’t comply with the plan.
  • Durational alimony may be awarded to provide financial assistance for a prescribed length of time. The amount of this type of alimony can be modified if a significant change in circumstances occurs; the length of time can only be changed under exceptional circumstances.
  • Temporary Alimony (aka pendente lite or pending the suit) are alimony payments made by one spouse to the other during the pendency of the divorce. 
  • Permanent alimony is meant to provide for the needs of a spouse who is unable to meet his or her own needs after the marriage is dissolved. The length of the marriage will be a factor in whether this type of alimony can be awarded.

The court can order one party to pay periodic payments, a lump sum, or both. Types of alimony awarded in Florida include:

  • Bridge-the-gap alimony is intended to assist one party transition to being single for a limited length of time.
  • Rehabilitative alimony may be awarded to help one party gain new skills or credentials or improve previous ones in order to become self-sufficient. There must be a well-defined rehabilitation plan in place. Rehabilitative alimony can end when the plan is completed, or if the recipient doesn’t comply with the plan.
  • Durational alimony may be awarded to provide financial assistance for a prescribed length of time. The amount of this type of alimony can be modified if a significant change in circumstances occurs; the length of time can only be changed under exceptional circumstances.
  • Temporary Alimony (aka pendente lite or pending the suit) are alimony payments made by one spouse to the other during the pendency of the divorce. 
  • Permanent alimony is meant to provide for the needs of a spouse who is unable to meet his or her own needs after the marriage is dissolved. The length of the marriage will be a factor in whether this type of alimony can be awarded.

Once it has been determined that alimony is appropriate in the case, the court will weigh several factors in making decisions about the amount of alimony and how long it must be paid, including but not limited to:

  • How long the marriage lasted
  • Each party’s financial resources
  • The standard of living that was established during the marriage
  • Each party’s physical and emotional condition, and age
  • Each party’s employability and vocational skills
  • Each party’s responsibility to any minor children
  • The sources of income available to each party

 

You are not required by law to have a divorce attorney in Florida, but considering the profound effects divorce can have on a couple or family, it’s advisable to have legal counsel if possible. The laws relevant to divorce in Florida and the complexities inherent in any legal proceeding can be challenging to understand and it can be difficult to know just which options you have available as you make decisions. In addition, if one party has an attorney, it’s best for the other party to have one as well in order to ensure that neither party has an unfair legal advantage.

If you have minor children and/or significant assets, an experienced divorce lawyer can help ensure that all parties’ legal rights are preserved and the most equitable terms can be reached. At Forefront Law Firm, our family law team can help you navigate every aspect of the divorce process, including mediation and a trial should it be necessary.

In order to file for a dissolution of marriage in Florida, one of you must be either a Florida resident or a member of an armed force who is stationed in Florida. One of you must also have been a resident of the state for a minimum of six months. If your spouse is not a Florida resident, you will need to file in the Florida county where you live. If your spouse is a resident of the state, you must file in the county where your spouse resides.

A good deal of information is needed in divorce proceedings, many of them related to finances. These include mortgage documents for all real estate; statements for all bank, retirement, and investment accounts; income tax returns; records of all income, and more. You will also need a complete inventory of family belongings and major possessions, records showing both parties’ debts, and household budget details that can help the judge arrive at a fair amount of spousal support.

Judges have broad discretion in divorce cases and their decisions are not often reversed in appellate court. It is possible to make a successful appeal, however, if it can be proved that the trial judge made an error of law. In any case, you must act promptly to file an appeal of the final judgment: It must be filed within 30 days of the date of the order you’re appealing.

An experienced Jacksonville divorce lawyer can help protect your interests and those of any minor children. Forefront Law, can help you with in family law, divorce law, and estate planning, three practice areas we can draw from to ensure the best outcomes for our clients today and into the future. We help you establish grounds for your divorce, properly account for your economic circumstances, explain how property may be divided, assist with a plan for spousal and child support, negotiate a settlement, and much more. As with any legal proceeding, having a qualified lawyer on your side can help you avoid costly mistakes.

We are dedicated advocates for our clients through every stage of the process of divorce, from the initial filing to representing you in court, if necessary to resolve the terms of your divorce. If you need a Jacksonville divorce attorney, please don’t hesitate to call us at 904-733-9080 or contact us online.

Family Law

“Family law” broadly describes a wide range of legal issues that impact family relationships. Some of the most common include divorcechild custody and visitation (now known as timesharing), adoption, establishment of paternity, child support and spousal support.

Many of these issues arise in the context of a divorce case, but others are separate legal proceedings. And, some—such as child support and custody issues—may be determined in a divorce case or in another proceeding, such as a paternity case.

Some family law attorneys offer a variety of services under the family law umbrella, while others focus on specific areas such as divorce and related issues or adoption. Regardless of the case type, a family law attorney can help to sort out the emotional from the legal and practical issues and work toward the best outcome for you and your family. Your attorney can also take charge of issues like deadlines, discovery obligations, formatting of filings, assembly of evidence, and other aspects of the case that are outside most people’s knowledge and experience.

At Forefront Law, we help people with issues such as:

  • Petitioning for divorce or responding when served with divorce papers
  • Establishing spousal maintenance where appropriate
  • Negotiating or litigating for the best possible custody and visitation arrangement
  • Establishing paternity of a child born to unmarried parents
  • Establishing and enforcing child support obligations
  • Negotiating or litigation division of debts and assets

We also help clients with legal issues that don’t fall strictly within the definition of family law, but are necessary to protect their families. These include preparation of wills and other estate planning documents and creation of special needs trusts.

Many people who are divorcing, establishing paternity, or making modifications to child support or custody and visitation orders and have reached an agreement ask whether they need an attorney. The question is understandable: if there is no conflict and you believe that you’ve agreed on every issue, it may seem that it would be easier and less expensive to proceed on your own. But, that can be a serious mistake. While you’re not legally required to have an attorney represent you in any of these proceedings, it is typically in your best interest to work with a Jacksonville family law attorney you trust.

It’s easy for people who aren’t familiar with the legal system to overlook important points or make procedural mistakes that can have serious consequences. When you work with an experienced family attorney, your lawyer will walk you through all of the relevant issues to ensure that you truly are on the same page and that you haven’t left anything unaddressed. Your attorney will also take charge of the procedural and technical requirements, freeing you to focus on the issues affecting your family.

Many people who are divorcing, establishing paternity, or making modifications to child support or custody and visitation orders and have reached an agreement ask whether they need an attorney. The question is understandable: if there is no conflict and you believe that you’ve agreed on every issue, it may seem that it would be easier and less expensive to proceed on your own. But, that can be a serious mistake. While you’re not legally required to have an attorney represent you in any of these proceedings, it is typically in your best interest to work with a Jacksonville family law attorney you trust.

It’s easy for people who aren’t familiar with the legal system to overlook important points or make procedural mistakes that can have serious consequences. When you work with an experienced family attorney, your lawyer will walk you through all of the relevant issues to ensure that you truly are on the same page and that you haven’t left anything unaddressed. Your attorney will also take charge of the procedural and technical requirements, freeing you to focus on the issues affecting your family.

Many people search online for phrases like “best divorce lawyer in Jacksonville” or “best Florida child support attorney,” but finding the right lawyer for you isn’t quite that simple. “Best” is a subjective term, and every case and client is different. To find the best family law attorney for you, you’ll have to consider multiple factors.

Of course, knowledge and experience are critical. But, family law issues are very personal and can often be stressful and emotional. It’s important that you are comfortable talking openly with your family law attorney, and that your attorney listens and considers what matters most to you. Attorney Forefront Law has dedicated her career to helping people care for and protect themselves and their families and will take the time to hear your concerns and tailor her representation to your needs.

The basic Florida child support formula bases support on the incomes of each parent and the number of children. In its simplest form, the process involves adding the two parents’ incomes together and using a table to determine the total amount of support. Then, each parent is deemed responsible for support in proportion to his or her income.

However, the determination is actually more complicated than the basic formula suggests. Health insurance and child care costs factor into the determination, as does the amount of time each parent spends providing direct care to the child. The default is for the court to order support based on the outcome of the Florida child support worksheet, but under certain circumstances one parent or the other may file a motion to deviate from the guidelines.

An experienced Jacksonville family law attorney can be your best source of information about what you can expect to pay or to receive in child support, and whether you may have special circumstances that would warrant deviation from the guidelines.

In a custody case involving parents who were married when the child was born, Florida law doesn’t favor either parent. The factors a court considers in determining custody are gender-neutral, and the analysis is crafted to serve the best interests of the children. When possible, Florida courts tend to favor shared parenting.

However, when a child is born to unmarried parents, Florida law makes the mother the default guardian of the child. The biological father of a child born out of wedlock has no legal rights unless and until his paternity is legally established. Putting the father’s name on the child’s birth certificate is not sufficient to legally establish paternity—that requires a court order.

Ideally, two parents who are divorcing or who have a child together and never marry or share a home will work together to create a shared parenting plan that works for the whole family and meets with court approval. When the parents can’t reach an agreement or the court finds that their agreement is not in the best interests of the children, the court may consider a long list of factors. Some of the key factors include:

  • The ability and willingness of each parent to cooperate and communicate with the other parent, and to foster a positive relationship between the children and the other parent
  • Continuity of community, school, family relationships and other established aspects of the child’s life
  • Each parent’s demonstrated knowledge and involvement in areas of the child’s life such as school, medical care, friends and activities
  • The reasonable preferences of a child if the court determines that the child has the appropriate understanding and capacity to meaningfully express such a preference
  • The capability and willingness of each parent to recognize, prioritize, and act on the child’s needs
  • The involvement of each parent in caretaking tasks before the separation

Of course, the court will also consider health and safety issues such as an history of physical or sexual abuse, neglect, unsafe living conditions, or use of controlled substances in the home. And, the court may in its discretion consider any other factor it deems relevant to determining the best interests of the children.

The divorce decree is often called the “final order” in a divorce case, and some aspects of that order are set in stone except in limited, extraordinary circumstances. For example, division of property and assignment of responsibility for debts are generally not subject to modification.

But, there are some aspects of the divorce decree that may require modification over time. The same is true for a custody or child support order entered in a paternity case. Florida law balances this reality with the need for consistency and stability by setting a high bar for modification. To successfully petition for a change in custody, for instance, the filing parent must show a “substantial, material, and unforeseeable” change in circumstances. The standard is somewhat subjective, leaving courts with significant discretion to determine whether a modification is warranted.

Similarly, child support may be modified if there has been a “substantial change in circumstances.” When the change is purely financial—for instance, when one party’s income has changed—the threshold for modification is a change of at least the greater of 15% or $50.

Divorce decrees and other family court orders address critical issues such as time with your children and access to support you need to keep your household running. Unfortunately, not everyone takes those orders seriously and follows the rules. If your former spouse fails to pay child support, doesn’t produce property he or she has been ordered to turn over to you, or interferes with your court-ordered time with your children, you can go back to court to enforce those orders.

Someone who willfully violates a court order can be held in contempt of court. A contempt citation can have serious consequences, which the court can use to compel the other person to follow the order and to punish those who refuse to do so.

Child Support & Custody

Florida uses the Income Shares method of determining child support. In a nutshell, that means that the court combines the income of the two parents to determine what total household income would be if the parties were still together. That matters because Florida law seeks to provide the child with the same level of support he or she would have received if the family had remained intact. 

The total is used to determine the total amount of child support that is appropriate. Then, that amount is divided between the parents in relation to their share of the total income. For instance, if the total amount of child support is $1,000/month and one parent earns 60% of the income, that parent would be responsible for $600 of the support and the other parent would be responsible for $400. 

How that translates to actual child support payments made by one parent to the other depends on time-sharing and how much direct support each parent is providing to the child. It is also important to note that the calculation above reflects the simplest scenario. Certain expenses and deductions can impact the actual share of support each parent is responsible for.

People facing a custody battle often ask whether Florida law or the Jacksonville courts favor mothers or fathers. If the parents are not married when the child is born, custody automatically vests in the mother. 

However, when parents are divorcing, Florida law treats mothers and fathers equally. The court will decide how much time and what authority should be granted to each parent based on the best interests of the child. Florida custody law lays out a long list of factors to be considered, but all apply equally to mothers and fathers.

Like the laws of most states, Florida custody law requires the judge to base decisions about parental responsibility and parent time sharing on the best interests of the child. Florida law presumes that shared custody is in the child’s best interest, though this presumption can be overcome. 

To determine how much time each parent should have with the child and what authority each has, the court will consider factors such as each parent’s existing relationship with and involvement in the care of the child, whether each parent can be relied upon to help the child maintain a relationship with the other parent, and in some cases the preference of the child. 

Of course, the court will also consider any factors that might put the child at risk or create a detrimental environment, such as excessive drug or alcohol use or abusive behavior. An experienced Jacksonville custody lawyer will be able to provide more information about the specific elements likely to impact the custody determination in your case.

Many people going through contentious divorces are concerned that the other party will try to prove them an “unfit parent.” While Florida law does define “unfit parent,” that definition appears in the section of the Florida statutes regarding the removal of a child from his or her parents’ care. The term “unfit parent” does not appear in the Florida custody statute, and is not the standard Jacksonville courts use to determine custody.

 

One of the most important things you can do to strengthen your custody case in Florida is not fight. The ability of the parents to work together in the best interests of the child and the willingness of each to help the child maintain a strong relationship with the other parent are key factors in a custody determination. So, it’s important to leave any fighting necessary to your Jacksonville custody lawyer and make every effort to approach your child’s other parent in the spirit of cooperation. 

Of course, it is also important to maintain a positive, stable environment for your child, stay involved in his or her life, refrain from behaviors that may put the child in a negative environment, and stay as involved as possible in your child’s day-to-day life. 

Many parents are under the impression that a child of a certain age is entitled to decide for himself or herself which parent to live with. And, many adolescent and teenage children believe they should have the right to make that decision. In Florida, a child never has the right to make that decision unless the child is 18 years of age or older–in which case, there is no custody determination.

The wishes of a minor child in Florida may be considered in a custody case, if the court determines that the child has the necessary intelligence and understanding to express a preference. However, the weight to give to the child’s preference is left to the discretion of the court, and may vary depending on the age of the child, the child’s expressed reasons, and the other considerations in the mix.

Generally, one parent will have a child support obligation even if the child spends exactly half of his or her time with each parent. That’s because under Florida’s Income Shares model, it is rare that each parent would be responsible for exactly half of the child’s support.

That means that one parent’s direct support typically falls short of his or her support obligation, while the other parent’s direct support is more than he or she is expected to provide. To balance this, the court will typically order the parent with more income to pay the difference to the other.

Imagine, for example, that two parents share custody 50/50 and the total amount of child support is $1,200/month. But, one parent earns twice as much as the other, and therefore is responsible for ⅔ of the child support obligation. The higher-earning parent would owe $800, and the lower-earning parent would owe $400. So, the higher-earning parent would generally be ordered to pay $400 to the lower-earning parent.

If that sounds complicated, don’t worry. Your Jacksonville child support lawyer will be able to walk through the calculation with you and give you an idea of what to expect.

Quiet Title

To hold title in Florida means to maintain some sort of legal interest in a given piece of property. The process of taking title can take many forms, including sole ownership, shared ownership, and securing property in trust. Regardless of how title is obtained, however, it is critical that it is clean and clear — free of liens and levies, along with other circumstances that could bring ownership into question.

In some cases, the process of obtaining clean title is best undertaken via a civil procedure known as a quiet title action. Typically brought about by the property owner, this action may involve requests to cease any rights held by those who maintain an interest in the real estate in question. These actions commonly occur during disputes with mortgage lenders or following the death of the title owner. They may also occur if the property has been unoccupied for a significant period of time.

If successful, a quiet title action may lead to a judgement declaring the removal of all adverse legal interests. This decision is approved and signed by a Florida judge. At this point, the title is deemed “quieted.” That being said, select legal claims may remain under specific circumstances, such as the presence of a federal tax lien.

Quiet title proceedings may initially seem simple, but adverse possession can quickly add complications to seemingly straightforward cases. At its most basic level, adverse possession means gaining claim to property without actually purchasing it.

In Florida, it is occasionally possible for neighbors or even trespassers to eventually gain legal title to a particular home or piece of land, even if a property owner is believed to already hold claim to the real estate in question. The trespasser holds the burden of proof in such cases, but those who can meet local requirements may be able to claim adverse possession.

For adverse possession attempts to prove successful, the trespasser must be physically present on the property and exert control over it. The possession of the property must also be exclusive — the trespasser cannot share it with anybody else. This possession must occur on a continuous basis for at least seven years. In order for the possession to be adverse, the trespasser must pay all outstanding taxes on the property. Additional restrictions may apply, with public land most notably immune.

Adverse possession laws can vary significantly from one state to the next. While the intent of the trespasser plays a role in some regions, it is irrelevant for adverse possession claims in Florida.

Probate

Under Florida law, there are two types of probate administration: summary administration and formal administration, both of which are court-supervised processes. There is also a non-court-supervised proceeding, “Disposition of Personal Property Without Administration,” a type of administration that can only be used when the decedent did not leave any real property and the only assets either do not exceed the amount of the final expenses or are exempt from creditors’ claims.

When estates have less than $75,000 of non-exempt assets, summary administration, a simplified form of probate may be used. This probate process does not require the appointment of a personal representative and is often used when more than two years have passed since the decedent passed away..

This is the most common type of probate process in Florida and is set into motion when an executor or personal representative is nominated through the will and petitions the Court to appoint him or her as the Personal Representative of the estate. The Court issues a Letter of Administration to give the Personal Representative authority to settle the estate. The Court is generally in the same place in which the deceased was living at the time of death. 

All beneficiaries and heirs of the deceased must be given notice of the proceeding in order to have a chance to object. If there is a will, it also must be filed with the Court. 

Under the Court’s supervision, the Personal Representative will then:

  • Inventory all of the deceased’s assets
  • Pay debts and taxes
  • Distribute the remaining assets to the people listed in the will
  • Provide evidence to the Court and request that the estate be closed

To close the estate, the Court will issue an order and relieve the Personal Representative of further responsibilities. 

When a deceased person leaves behind few assets, Florida law allows for someone who paid for final expenses such as funeral costs and hospital bills to be reimbursed from the assets of the estate. This can only be done when: 

  • The deceased person did not leave any real estate, and 
  • The only assets are either exempt from creditors’ claims or do not exceed the amount of final expenses 

For more help with the probate process, we’ve compiled a complete Florida Probate Checklist to help you before, during, and after your probate is completed. If you have any additional questions, please reach out to our dedicated team and they will be happy to assist you.

No. There are a number of assets that can be settled without going through the probate process and may go to the new owner without court approval. The most common types of these assets include: 

  • Property held in joint tenancy by more than one person, such as a home owned by a married couple
  • Assets for which the decedent designated a beneficiary, such as the proceeds from a life insurance policy
  • Assets held in a living trust

Probate is necessary in Florida to pass ownership of the decedent’s probate assets to his or her beneficiaries and it is also necessary to complete the decedent’s financial affairs after his or her death. 

In order to determine who legally has rights to those assets, the legal system of probate comes in to mediate. Probate is also necessary in order to make sure that financial debts are paid. When someone passes away with debt, the creditor may have a valid right to part of the assets as compensation.

The length of time to complete the probate process varies, but should usually be completed within 12 months of the personal representative being appointed. If the estate is relatively simple, proceedings may only last a few weeks. This short time period may be possible with some summary administration proceedings. 

When a formal probate proceeding has started, however, it may take several months to complete. In the event an estate is particularly complex, probate may take more than a year. Since there are strict guidelines for informal probates, most probate proceedings are formal. The time needed to complete formal probate also varies depending on the type of the estate’s assets. Real estate holdings, for example, may slow down the process if they take a long time to sell. 

In any case, formal probate must last a minimum of three months in order to give creditors time to file a claim. If a large estate has tax complications, the proceedings can last more than two years

To initiate probate, there is a filing fee to be paid to the clerk of the circuit court in the county in which the decedent lived at the time of death. The hiring of an attorney is required by law for summary administration and formal administration. Because the probate process can be complex—particularly when the estate itself is complex—you will likely find legal assistance very helpful in navigating probate.

Florida statutes set out attorneys’ fees for probate that are related to the value of the estate, excluding homestead property. Here are some examples:

  • Value of estate up to $40,000: $1,500
  • $70,000 to $100,000: $3,000
  • $1 million to $3 million: $3,000 plus 2.5% of the value over $1 million
  • More than $10 million: $3,000 plus 1% of the value above $10 million

In addition, attorneys may charge for other services, such as providing tax advice. Since these costs may vary, it’s important to ask your attorney if they follow the state fee schedule and whether they can quote you an hourly rate or flat fee.

These are assets that were owned in the decedent’s sole name at the time of his or her death, or assets that were owned at that time by the decedent and one or more co-owners, but lacked a provision for automatic succession of ownership. Examples include a life insurance policy or IRA account payable to the decedent’s estate is a probate asset, while a policy payable to a designated beneficiary is not

People commonly seek ways to avoid the often confusing and complex probate process. In Florida, probate may be unnecessary in these instances:

  • When assets are jointly owned
  • When assets have been designated to beneficiaries by the decedent’s will
  • If there is a living trust
  • If there are transfer-on-death registrations for stocks, bonds, or vehicles, or transfer-on-death deeds for real estate

Keep in mind that most of the measures that can help you avoid probate must be taken prior to death.

Some assets in Florida may be except by being automatically passed on to a spouse or child. One example is where the spouse or children may be living. Furnishings in the house are considered exempt property and may also skip probate. Exempt property can include items with a value of up to $20,000. Exempt property can also include two motor vehicles and qualified tuition programs. Some restrictions apply, so you should consult a Florida probate and estate attorney for advice.

Keep in mind that most of the measures that can help you avoid probate must be taken prior to death.

A small estate may be eligible for summary administration probate proceedings. A small estate in Florida is valued at less than $75,000. A small estate may be eligible for summary administration, which may also be considered if the deceased has been dead for more than two years with no claims being made. If the court recognizes the estate as small, the proceedings are streamlined for faster turnaround.

A person who dies without a valid will is said to be “intestate.” It’s a misconception that the state will automatically take all of an intestate decedent’s assets even if there are heirs. If the decedent died intestate, his or her probate assets will be distributed to heirs in an order specified by Florida’s Statutes.

Most of the time, you will need a lawyer to manage your probate proceedings in Florida. The main exceptions occur with very small estates, which are processed via disposition without administration, and estates where the executor is the sole beneficiary. Florida law requires all other probate cases to have support from an attorney. More than that, probate proceedings are complicated and hard to understand. Therefore, an attorney is the best way to protect yourself during the process. An experienced probate attorney can make sure that all documents are filed correctly in order to avoid complications.

State court records—including probate records—are public in Florida in most cases. According to Florida law, the public has a presumptive right of access to all court records in the custody of the court clerk. The paperwork filed with the probate proceedings can be made available by request at the court’s office where it was filed, including the will.

Guardianship

The role of guardians can differ dramatically from one region to the next. In Florida, these vital individuals act as surrogate decision-makers, responsible for making key choices regarding personal and financial affairs. Depending on the situation, these decisions may be made on behalf of a minor or an adult with significant physical or mental disabilities. Typically, the person who is most impacted by such decisions is known as the guardian’s ward.

Guardianship is only turned to as a solution under select circumstances. For cases involving minors, guardians may be appointed if the child’s parents pass away or become incapacitated due to illness or injury.

In some cases, guardians may be required when children receive inheritances or lawsuit proceeds that exceed the amount currently allowable by state statutes. Many parents use wills to designate guardians they hope will take over care of their minor children in the future if they should die or become incapacitated.

Guardians can only be appointed to make decisions on behalf of adults when the court finds that less restrictive options such as a durable power of attorney are unviable.

In Florida, both individuals and organizations can serve as guardians. To take on this important role, individuals must typically be current Florida residents, although some of the ward’s relatives may be eligible even if they do not currently reside in state. Those convicted of felonies are not allowed to serve as guardians in Florida.

Nonprofit organizations are sometimes selected as guardians — but bank trust departments are only permitted to take on this role when handling property.

Guardian responsibilities vary significantly based on the age of the ward and whether the guardianship is deemed limited or plenary. Those given authority over wards’ property are required to conduct thorough and regular inventories, accountings, and file detailed reports with local courts. Additionally, financial guardians are charged with making prudent investments and as necessary, using such property to support the ward.

Those who act as personal guardians may provide for the medical and/or mental care of the ward. This may include determining where the ward should reside. Such guardians are tasked with submitting physician reports and plans for the ward’s care on an annual basis.

The state of Florida maintains a variety of provisions to ensure that guardians abide by their duties without overstepping boundaries. At minimum, Florida guardians must be represented by attorneys of record. Additionally, local clerks of court look closely at annual reviews to ensure that guardians properly carry out their responsibilities. Those who fail to properly handle expected duties may be removed as guardian.

Guardians are not permanent; not only can they be removed by courts; they can voluntarily resign. If a ward recovers partially or fully from the conditions that initially left them incapacitated, they can petition the court for restored rights, which may eventually lead to the removal of the guardian.

Guardianship may initially seem complicated, but it’s necessary for the protection of Florida’s most vulnerable residents. For this reason, the appointment and approval of local guardians must be taken seriously.

Forefront Law, Jacksonville Florida can help with your issues related to guardianship in Florida. Contact us at 904-733-9080 or at info@forefrontlaw.com.