The death of a family member can be an extremely tough experience. On top of dealing with grief, adjusting to a life without your loved one, and the funeral, there is the challenging task of managing their estate and assets. If they left a last will and testament, the personal representative or executor of the will has a duty to ensure that all heirs receive the assets they are entitled to. Without a will, the estate will be divided amongst family members in accordance with Miami probate law.
Trying to understand the probate process without legal assistance can be quite difficult, and many families make the mistake of trying to execute a will without a lawyer. However, a probate attorney can help ensure that the will is legally valid, that all rightful heirs get what they are entitled to, and the will is executed fairly.
Probate Lawyers at Miami Family Law Group, PLLC
Miami Family Law Group, PLLC can help you with all aspects of probate administration and litigation. Our attorneys have been practicing law for over 20 years, and we have the experience and skills necessary to help you with your probate case. We understand how tough it can be to go through the probate process after a family death, particularly if there was no will or if there are family conflicts. We prioritize protecting families, and we will guide you through the process with compassion and the highest standard of legal care.
A probate attorney from our law firm can help you with filing registration documents for a will, paying taxes and debts, selling real estate, resolving disputes amongst beneficiaries, collecting assets, litigation, and any other matter that you need assistance with.
Call our law firm today at 305-916-4053 to discuss your case with a Miami, FL probate attorney.
What is Probate Law?
Probate or estate administration is settling a deceased person's estate. If the person has a Will and Testament, the probate process seeks to validate this document on behalf of the deceased legally. In the event that a person had a will or trust executed prior to their passing away, their estate is known as "testate".
However, if a person did not execute a trust or will prior to their passing, and there is no documentation to show how their assets should be distributed, their estate is known as "intestate". Florida law provides a default set of rules for how an estate should be divided between family members if a person dies without a will or with an invalid will.
The hierarchy is as follows:
- If there are no surviving lineal descendants, such as children or grandchildren, the entire estate will go to the decedent's (the deceased person) surviving spouse.
- If the decedent and surviving spouse had descendants together (children, grandchildren), and neither of them had children with another person, the surviving spouse may also inherit the entire state.
- If the decedent has lineal descendants that are not related to the surviving spouse, one-half of the estate will go to the surviving spouse and the balance will be divided amongst the descendants based on the "per stirpes" method.
- If the decedent has surviving lineal descendants and no surviving spouse, the estate will be divided amongst the descendants.
Trying to figure out who is entitled to assets when the deceased does not have a will or trust can be quite confusing. The probate attorneys from our law firm can offer advice on how your deceased relative's intestate estate should be administered in your case.
The Probate Process in Miami, FL
The probate administration process is the process of dividing up a deceased person's will, trust, or other estate planning documents after their death. Depending on the family situation and whether there are any disputes between family members, the legal process of probate administration can be quite complex, so it is important that you seek legal counsel from one of our experienced probate lawyers.
Filing The Petition
The first step in the formal administration of probate is to file the petition for probate in a Miami circuit court. The surviving spouse or descendants must obtain the last will and testament, list all the assets contained in the will, provide their titles, and list their approximate values. It is important that the last will and testament are filed within the first 10 days after the death.
Recognizing the Personal Representative
Once the documentation has been filed with the court, the Judge overseeing the case will assess the validity of the will. If it complies with Florida Probate Law, the Judge will then assign the executor of the estate or the personal representative. If the will or trust specified who the executor should be, the Judge will appoint this person as the executor.
However, if the will does not specify who the executor should be, a family member or beneficiary can petition the court to be appointed the executor. As the executor or personal representative, you have the authority to administer and settle the estate.
Inventory of the Estate
The executor of the will is required to provide a comprehensive inventory of the estate, including all property and assets that are included in the probate. Sometimes, assets and property may be designated to other beneficiaries outside of wills or trusts, and these assets do not have to be included in the inventory.
The types of assets that could be included in the inventory include:
- Real estate or property owned by the decedent.
- Bank accounts in the decedent's name that do not have a beneficiary or co-owner.
- A life insurance policy that is owed to the decedent's estate.
Notice of Probate
Once the personal representative has completed the probate inventory, they are required to notify all parties subject to the probate. This includes the beneficiaries (those who will receive assets or property) and their heirs (next of kin that receive assets or property in the absence of wills).
The executor is also required to notify the deceased's creditors of the probate process. In the event that the deceased has not paid debts to a creditor, the creditor will have three months from the date of this notice to file a claim with the probate court.
Paying Taxes, Debts, and Expenses
Before distributing assets and property to beneficiaries, the personal representative must ensure that all taxes, debts, and expenses of the decedent are paid. They will have to file tax returns, including their final 1040 form for tax returns, 1041 form for taxable income on the estate, and 706 forms for federal estate tax returns on the gross estate.
If there were any legally valid claims filed by creditors in the probate court, the personal representative must settle these claims. In the event that there are not enough assets to pay back all taxes, debts, and expenses, the court will have the final decision on which parties take priority.
Transfer of Assets
The final step in probate cases is the distribution and transfer of assets to all beneficiaries and heirs. It is important that all taxes, debts, and expenses have been taken care of before the personal representative can transfer assets. If the decedent did not have a will, the assets will be divided in accordance with Miami law on probate.
Common Probate Issues in Miami, FL
Will and trust administration is rarely straightforward. In addition to the legal proceeding itself being quite complex and confusing, there are often many probate matters that need to be figured out before the will can be distributed. Often, these issues can cause probate cases to be dragged out for long periods of time. The best way to ensure that probate matters are resolved quickly is to hire an experienced probate attorney to help with your case.
Arguments Between Family Members
One of the main issues that our probate lawyers deal with is arguments between family members about the estate plan. Going through the death of a loved one is extremely tough and family members are then, unfortunately, tasked with dividing up their loved one's estate. This can become even more difficult when there has been no proper estate planning carried out before death.
Without estate planning, beneficiaries are required to decide amongst themselves who should be the personal representative, divide up the assets in accordance with the law, and conduct a formal probate administration with a probate attorney if the assets are more than $75,000. Probate can often cause tensions between family members which can make it more difficult to divide up an estate.
Hiring a probate attorney to act as the executor of the will can relieve tensions between families and help ensure that the estate is divided fairly and in accordance with the law. One of our probate lawyers can help by handling all communication, advising each beneficiary of the will to their entitlements, and handling legal matters on behalf of the family.
Assets in Multiple States
When a deceased person has assets or real estate in multiple states, the process can get quite complicated. This is because there are different laws regarding estate administration in different states. If the deceased person lived in Miami but owned property in New York, for example, the property will be subject to the laws of New York.
As such, a personal representative may have to conduct multiple probate administrations in different states depending on where the decedent owns the property. Some states also have laws requiring probate lawyers to handle the case. One of our Miami probate lawyers can offer advice on whether you will need to hire a lawyer in other states for the probate administration.
Personal Representative Not Accepting Role
Whether set out in the will and trust or decided by a court, one person must be designated as the executor or personal representative of a will. Once they have been appointed as a personal representative, they must accept the role. If a person does not accept the role, the court will have to dedicate a new personal representative to administer the probate, which can often delay the process significantly.
The easiest way to prevent this situation from happening is to communicate with the designated personal representative during estate planning and ensure that they are happy to be named as the executor of your will.
Probate Litigation in Miami, FL
Probate litigation occurs when there are contested issues in relation to the validity of a will, asset entitlements, and other probate issues. The main types of probate litigation include will contests, will construction, breach of fiduciary duty, and non-marital children seeking inheritance. If you are the personal representative of a contested will, or if you suspect that you are being denied assets, it is vital that you contact a probate attorney to help with your case.
Will Contest
A will contest can be brought against a last will and testament that you believe to be invalid. Some grounds for invalidity include:
- The will does not meet legal requirements.
- The testator was coerced into signing the will (undue influence).
- The testator was incapacitated when signing the will.
- Existence of a will prior to the one put forward for probate.
When a person opens a probate with the will of a deceased person, other parties to the will have a short amount of time to file a petition to contest the will, usually 90 days.
Breach of Fiduciary Duty
The personal representative or executor of a probate estate has a "fiduciary's duty" to execute the will with a high standard of care. They are required to interpret the will as per the intention of the deceased person, or to the same standard that they would execute their own will. If a personal representative does not respect this duty and commits wrongdoing, they can become the subject of probate litigation and be removed from their duties.
Probate in a Wrongful Death Claim in Miami, FL
"Wrongful death" is when a person's death is caused by the negligence of another party, which could be in a fatal car accident or medical malpractice, for example. To recover compensation for wrongful death, a person must file a wrongful death claim, which can be done alongside personal injury lawsuits.
If your loved one was killed by another party's negligence, the personal representative of the deceased person's will is responsible for filing a wrongful death suit. This claim is pursued separately from probate proceedings and is dealt with as a civil lawsuit. If the wrongful death suit is successful, family members may be able to recover funeral expenses and a loss of income to the family household, depending on the circumstances.
To pursue a wrongful death lawsuit, it is strongly advised to seek legal assistance from an attorney that has experience handling these types of cases. They can offer advice on whether you may be entitled to recover compensation, help investigate your case, and file a claim on your behalf. A probate attorney can advise you on which beneficiaries or heirs are eligible to recover compensation from a wrongful death suit.
Contact a Miami Probate Lawyer From Miami Family Law Group, PLLC Today!
Most Miami residents do not have experience dealing with probate and when a close family member dies, it can be quite a stressful experience. Trying to understand the probate legal system, dividing assets and property, paying off debts and taxes, and executing the will can be difficult tasks, particularly without legal assistance. If you recently lost a family member and are dealing with probate issues, we recommend contacting a probate attorney at Miami Family Law Group, PLLC today.
Our law firms principal focus is on protecting families and ensuring that your best interests are taken care of. We have a team of the best probate lawyers that can help you with all types of probate services in Miami Dade County, including the execution of a will, payment of debts and taxes, litigation, and much more. As your legal representative, we will offer personal attention to your probate case and guide you through the legal process without any stress.
When it comes to family matters, it is important to have a lawyer that cares about your best interests. The Family Law Firm understands how difficult probate matters can be, particularly when emotions are high and you are going through the grieving process. We want to help you
Call 305-916-4053 to schedule a consultation with a Miami probate attorney from our law firm today.
