Probate Law Concepts

The loss of a loved one is a very difficult experience.

The assets and outstanding claims of creditors and expenses of the Decedent, along with distributing assets to Beneficiaries, is a Court-Supervised process in Florida governed by the Florida Probate Code.

If a Last Will and Testament exists, it is filed with the Court to open an Estate. The person named in the Will has first priority for appointment as Personal Representative. The Judge appoints the Personal Representative who represents the estate in all matters through the close of the proceedings.

If there is no Will, the spouse has priority to serve as Personal Representative. Otherwise, there is a provision that close relatives in specific order have priority.

As a part of opening an Estate, creditors are made aware that an estate has been opened by publication of a Notice in a newspaper so they might file claims. Our firm is listed in the estate papers as the Registered Agent. In most instances, Publication of a Notice limits creditors to three months from the date of initial publication for filing a Claim against the estate. If claims are filed, a determination needs to be made as to whether or not the Claim should be paid. A procedure is provided in the Florida Statutes.

Probate is needed to complete any outstanding matters the Decedent had in progress. It also serves to pass legal title to assets to the heirs.

A surviving spouse does have the right to elect against a Will or estate by means of an Elective Share. This is 30% of the estate. There are also provisions for a surviving spouse to receive a family allowance for the spouse and/or minor children.

In the event a person remarries and prepares a new Will benefitting the new spouse, there are protections in the Florida Statutes for the new spouse. There are also protections for children born of the new Marriage after the preparation of the Will prepared before the children were born.

Florida Wills can be contested. Some of the most common reasons to contest a Will would be if the Decedent was unable to recall the names of their family such as spouse and children or that they do not know what assets they have. Another reason is that there may have been undue influence by a person who benefits under the Will. As people become older or sick or weak, they may be subject to being taken advantage of by people who want their assets.

Generally, a former spouse is unable to benefit from a Will after a Final Judgment of Dissolution of Marriage is entered.

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