If a decedent in Florida died without a Last Will and Testament (commonly referred to as a “Will”) they are deemed to have died “intestate”. If someone dies intestate, the laws of Florida will govern how their assets are distributed upon their death. This is why it is important to have a valid Will, to ensure your wishes as to the disposition of your assets are carried out upon your death.

Formal Administration: Formal administration proceedings typically involve estates with assets (other than exempt assets) totaling $75,000.00 or more or estates that are indebted. In a formal administration, Letters of Administration are issued by the court to a qualified Personal Representative. The Personal Representative is required to marshal the estate assets, satisfy any creditors of the estate and distribute the assets of the decedent either according to the decedent’s Last Will and Testament or if the decedent died without a Will, in accordance with the intestacy laws of Florida.

Summary Administration: Summary administration is an expedited form of probate administration which is only available if the decedent’s assets (excluding exempt property) are under the statutory threshold of $75,000.00 or if the decedent has been deceased for two years or more.

Unlike a formal administration, in a summary administration a Personal Representative is not appointed and the process can be less costly and time consuming. However, this form of administration is not recommended if an estate is indebted.

Ancillary Administration: Ancillary administration is necessary if the decedent was not a Florida resident at the time of his or her death but owned assets in Florida. The proceeding involving the Florida assets would be considered the “Ancillary Estate” and the proceeding in the state or territory in which the decedent resided is the “Domiciliary Estate”.

Similar to a formal administration described above, a Personal Representative (called an Ancillary Personal Representative) is appointed to transfer the decedent’s Florida property to the intended beneficiaries. This is particularly common in situations in which a decedent owned real property in the State of Florida but resided in another state or territory.

Disposition of Personal Property Without Administration: If there are minimal assets, the value of which is exceeded by the expenses of the decedent’s last illness, including funeral expenses, this form of disposition can be used.

Although the above reflects a general description of each form of administration in Florida, it is wise to consult with an attorney to discuss your particular fact pattern. Further, each state, as well as each county, has different procedures and rules which must be followed in order to successfully probate an estate.

Each case is handled differently depending on the type of administration, assets and liabilities of the decedent, the terms of the Will (if any); and the beneficiaries involved.

The following is an outline of the general steps of a formal administration:

• Initial filing of probate documents (the majority of which are required to be filed electronically through an e-filing portal);
• Appointment of a Personal Representative.
• Publication and service of notice on all potential creditors
• Filing and service of the probate Inventory
• Resolution of creditors claims (if any) and payment of estate administration expenses, taxes and obligations of the estate
• Distribution of assets; and
• Discharge of the Personal Representative and closing of the estate.

The foregoing represents a general outline of the steps involved in a formal administration. Every case has specific facts that may require additional pleadings, filings and procedure.

Probate can take anywhere from 30 days to several years depending on the type of administration and the assets involved. For example, a probate case consisting of a claim for wrongful death could take several years to administer. On the other hand, a summary administration with no creditors could take less than 30 days.

A Personal Representative is a person, bank or trust company appointed by the court to administer the decedent’s estate in accordance with Florida law.

A Personal Representative is considered a “fiduciary”, meaning they are charged with the utmost care and professionalism under the law to administer the decedent’s estate prudently and in good faith. A Personal Representative must always act in the best interest of the estate and owes a duty not only to the beneficiaries of the estate, but also the creditors. Failure of a Personal Representative to effectively manage the estate can lead to a lawsuit for breach of fiduciary duty. Some ways a Personal Representative can be liable for breaching their fiduciary duty is by self-dealing (or putting their own interests above those of the beneficiaries and creditors of the estate), mishandling or mismanaging estate assets, and taking excessive compensation.

If you believe that a Personal Representative is breaching their fiduciary duty, you should immediately consult with an attorney. Failure to act timely could result in waiving your right to initiate a claim against the Personal Representative for their actions.

If there is a Will, the Will likely includes a provision nominating a Personal Representative (often referred to as an Executor or Executrix in other states and territories). If drafted properly, the Will should also include a successor Personal Representative (or alternate Personal Representative) in the event the nominated Personal Representative is unable to serve. The person nominated under the Will has priority to serve, assuming they are available, willing and qualified.

If there is no Will, Florida law determines who shall serve as Personal Representative and sets forth a list of individuals who have priority to serve.

What qualifications are required in order for a Personal Representative to serve in Florida?

A Personal Representative must be qualified in order to serve in Florida. To be qualified, a Personal Representative must be:

1.  A Florida resident (or related to the decedent as a qualified class)
2. Over the age of eighteen
3. Mentally and physically able to act as Personal Representative; and
4. Free of felony convictions

All Personal Representatives in Florida must be represented by an attorney licensed in the State of Florida.

It is important to note that a Will and the nomination of a Personal Representative has no effect until the court admits the Will to probate and formally appoints the Personal Representative. This process is discussed in further detail above under “Formal Administration”.

Many people believe just because they are beneficiaries, they are personally liable for the debts of their deceased loved ones. This is generally not the case. Unless the debt is assumed by the beneficiary (such as a joint debt or debts incurred by a husband and wife), the estate, and not the beneficiaries, is liable for these debts.

Through the probate process, the Personal Representative publishes notice in a local newspaper advising the public of the decedent’s death. This notice is not only published, but is also required to be served on all ascertainable creditors of the decedent. Once notified, the creditor has a limited time frame (the later of three months from the first date of publication or thirty days from receiving notice) in which to file a claim against the estate. If not timely filed, the creditor is barred from collecting their debt from the decedent’s estate.

It is important to note that a Personal Representative should be cautious in paying debts of the decedent in which a creditor claim has not been filed. Counsel should be consulted with prior to satisfying any debt of the decedent whether a claim is filed or not.

An Estate Inventory is an itemized list of all assets of the decedent owned and valued as of the decedent’s date of death. The Estate Inventory is required to be filed within 60 days of the Personal Representative being appointed and must be served on beneficiaries of the estate (and in certain occasions interested persons). Proof of service is required to be filed with the court.

The Estate Inventory is a good road map for the Personal Representative to determine the assets available to satisfy the decedent’s obligations.

Beneficiaries have significant rights in the probate proceeding. These rights include the right to notice and to be informed of various actions by the Personal Representative. Specifically, beneficiaries have the right to be notified of the pending estate proceeding and the appointment of the Personal Representative by the court. Beneficiaries also have the right to an accounting of the estate assets. This typically includes an Inventory and accounting of all transactions involving the estate assets from date of death throughout the probate administration process. Beneficiaries may also have the right to an appraisal of the estate assets.

Beneficiaries are offered the right to object to actions taken by the Personal Representative, but have specific timeframes in order to do so. As a result, if a beneficiary believes an estate is being administered inappropriately, assets are being mishandled or misappropriated by a Personal Representative or the Personal Representative has breached his or her fiduciary duty, the beneficiary should immediately consult with an attorney to discuss his or her rights.

A resident of Florida who is of sound mind and is 18 years of age or older and qualified to act as Guardian.

A non-resident who is either:

1. related by lineal consanguinity (blood relative where one person is a direct descendant or ascendant of the other) to the Ward (incapacitated person);
2. or a legally adopted child or adoptive parent of the Ward;
3. a spouse, brother, sister, uncle, aunt, niece, or nephew of the Ward, or someone related by lineal consanguinity to any such person; or
4. the spouse of a person otherwise qualified under this section.

All Guardians are required to be represented by an attorney licensed in Florida.

A person who has been convicted of a felony or who suffers from any incapacity or illness causing them to be incapable of discharging the duties of a Guardian or otherwise unable to perform such duties. Also, someone judicially determined to have committed abuse, abandonment or neglect against a child is disqualified from serving as a Guardian in Florida.

The court shall give preference to the appointment of a person related to the Ward, who has certain qualifications or experience relevant to the nature of the services sought, and who has the ability to serve. The court shall also consider the expressed preferences of the Ward as to who should serve as Guardian, or if the Guardian is unable to express his or her preference, the preference of the Ward’s next of kin is also considered.

Initial Filing- Several initial documents need to be filed with the court, including a petition for appointment of Guardian, oath of Guardian and application. Florida law sets forth specific requirements of which must be included in these initial documents. In addition, a detailed application listing the applicant’s qualifications to serve as Guardian must be filed. If the Ward is not a minor, simultaneously or prior to filing for appointment of Guardianship, a petition for incapacity and accompanying documents are also filed with the court. (This is also likely not required if a Guardianship proceeding is pending in another state of territory and the Guardian is seeking transfer of the Guardianship to Florida). (See incapacity heading below for further information on incapacity).

Attorney for the Ward- Once all initial documents are filed, the court appoints an attorney to represent the Ward. The attorney is randomly chosen by the Judge from a list of registered local attorneys. The attorney is required to inform the Ward of the Guardianship action against them and to zealously represent the Ward in the incapacity and Guardianship proceeding.

Examining Committee- The court also appoints an Examining Committee which consists of three professionals who are required to evaluate the Ward to determine whether the Ward has capacity. (This is not required if the Ward is a minor child or if there is a Guardianship proceeding already pending in another state or territory and the Guardian is seeking transfer of the Guardianship to Florida). The Committee consists of three members. One member must be a psychiatrist or other physician. The remaining two members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of expert opinion. The Committee files their reports with the court prior to the hearing.

Prior to the Hearing- The timeframe between the filing of the initial pleadings and the hearing is often a waiting period for the proposed Guardian. During this time the Guardian must submit to a background check and a credit check. This background check includes filing of the proposed Guardian’s credit report and the Guardian must be fingerprinted.

The Hearing- A hearing is scheduled typically within 30 days of the initial filings. During the time frame prior to the hearing, the Examining Committee evaluates the Ward and renders their reports. The court appointed attorney also meets with the Ward to review the pleadings filed and to formulate their response to the petitions filed. During the hearing the court will review the reports of the Examining Committee Members and the court appointed counsel and will render a decision based on this information and the facts and evidence presented. If the court finds by clear and convincing evidence that the Ward is incapacitated, the court will enter an order of incapacity. If there are no less restrictive alternatives to a Guardianship proceeding, the court will also appoint a Guardian during that time.

Plenary Guardianship: When a person is appointed by the court to exercise all delegable legal rights and powers of the Ward after the court has found that the Ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.

Limited Guardianship: When a person is appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the Ward lacks the capacity to do some, but not all of the tasks necessary to care for his or her person or property.

Voluntary Guardianship: Any person may consent to the appointment of a Guardian of his or her property as long as the person is determined by a licensed physician to be competent to understand the nature of the Guardianship and his or her delegation of authority.

Guardianship of Minor Child: An individual is appointed to manage the property rights of a minor child when the child will receive property valued at $15,000.00 or more.

Guardianship Advocacy: An abbreviated Guardianship proceeding in which a Guardian Advocate is appointed over a developmentally disabled individual to manage some but not all of the tasks necessary to care for his or her person or property.

Within the first month- A Guardian of the Ward’s Property will use this time to familiarize himself or herself with the Ward’s assets. If the Ward has assets, the Guardian will establish a guardianship account (which will likely be restricted by the court, meaning the Guardian will only be permitted to withdraw assets by obtaining a court order). A Guardian of the Ward’s Person will evaluate the Ward’s health, medical and residential needs.

Within the first two months- The Guardian of the Property will be required to prepare and file an Inventory of the Ward’s assets as of the date the Guardian was appointed. The Inventory will include all assets of the Ward including but not limited to, bank accounts, real estate, safe deposit boxes, claims and causes of action of the Ward, interest in life insurance policies and any other assets owned by the Ward. A Guardian of the Ward’s Person will be required to file an Annual Plan with the court for the upcoming year indicating the Ward’s health, medical and residential needs.

Within the first four months- The Guardian will be required to attend a guardianship education course outlining the duties and responsibilities of a Guardian. Depending on the type of Guardianship and the qualifications of the Guardian, the course may be a four or an eight hour course.

Annually- The Guardian of the Property will be required to file an Annual Accounting of the Ward’s assets, which details all transactions involving the Ward’s assets and accounts since the filing of the initial Inventory. The Guardian of the Person will be required to file an Annual Plan outlining the plan for the upcoming year as it pertains to the Ward’s medical, health and residential needs.

There is substantial court oversight once a Guardian is appointed. The court employs Guardianship Auditors who carefully examine the annual filings of the Guardian. These filings must be approved by the Guardianship Auditor each year. It is imperative that a Guardian files his or her annual reports timely and discloses all actions of the Guardian during the accounting period. In addition, many actions of a Guardian require prior court approval and failing to follow this guideline and to adequately and timely file the annual reports could lead to a Guardian being held in contempt of court or removed from their role as Guardian.

Serving as a Guardian is an important task. It is crucial to have an experienced and knowledgeable attorney to guide you in your duties as Guardian. This will avoid pitfalls that some Guardians experience while serving for their Ward. When in doubt it is always best to have the court approve your actions as Guardian prior to partaking in such action.

Once a person is deemed to be incapacited, the Guardianship continues until the Ward moves out of state, regains capacity and their rights are restored, the Ward dies, or the purpose of the Guardianship is no longer necessary. Thus, a Guardianship can last for long periods of time.

If the Guardianship involves a minor child, the Guardianship terminates when the Ward reaches the age of majority (18 years old).

However, it is worth noting that a Guardianship of the Ward’s Property does not automatically terminate upon the death of the Ward or upon the Ward (if a minor) reaching the age of majority. The Guardian must still take the necessary steps to terminate the Guardianship and obtain discharge by the court of their role as Guardian.

As a parent, you are the natural guardian of your minor child. However, being a parent (or natural guardian) does not automatically give you property rights over your minor child.

Natural guardians are permitted to collect and receive property of their minor children when the property in issue is valued under $15,000.00. This includes, settlements, insurance, inheritance, real property and all other property valued under $15,000.00. However, if a child is receiving property valued at $15,000.00 or more, a legal Guardian is required to be appointed by the court to manage these funds. Typically the parents are appointed as the Guardians of the Ward’s property. However, just like other forms of Guardianship, a parent must submit to a background check and take a Guardianship education course to serve as Guardian over their minor’s property. In addition, a Guardian of the property for a minor must file annual accountings with the court and the assets are required to be restricted until the minor reaches the age of 18.

Once the minor turns 18, the Guardian must take action to terminate the Guardianship and seek discharge as Guardian from the court.

A Guardianship Advocacy is a form of Guardianship available when the Ward (incapaciated person) suffers from a specific developmental disability (disorder or syndrome attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifests before the age of 18 and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely).

An advocacy is less costly and time consuming than an ordinary Guardianship as the court may appoint a Guardian Advocate without an adjudication of incapacity if the person lacks decision-making to do some, but not all, of the decision-making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for appointment of a Guardian Advocate.

Similar to an ordinary Guardianship, an attorney is appointed to represent the Ward and a hearing is held within thirty days or so from the initial filings.

Another benefit to a Guardianship Advocacy, is that depending on the rights delegated to the Guardian, the Guardian may not need to be represented by counsel throughout the Guardianship Advocacy proceeding. Further, some courts waive the educational requirements and annual reports of Guardians in advocacy proceedings. Instead, Guardian Advocates are sometimes permitted to file reports every two years as to the Ward’s status.

Whether you are wealthy or live within your means, single, married, or divorced, and have children or pets, implementing an effective estate plan during your lifetime permits you to have control over who handles your affairs and receives your assets upon your death. Without an estate plan, the court will make these decisions for you which may not be what you intended.

An estate planning tool created by an individual to manage his or her assets prior to death, and to specify how assets are to be distributed after death. The individual creating the trust, called a “Settlor,” or “Grantor,” transfers ownership of property and assets into the trust for the benefit of named beneficiaries. A revocable trust is one that can be changed, amended, or even revoked by the Settlor at any time before death or incapacity. This may include changes such as adding or removing assets, changing beneficiaries or altering Trustees.

A Will is cheaper to create during your lifetime and takes little effort on your part to maintain. A Trust requires some action on your part during your lifetime in order to “fund” your trust or retitle assets into your trust upon creation. However, the benefit of a Trust often outweighs the burden of creating and funding your Trust.

For example, upon your death, your Will is required to be admitted to probate and becomes public record. A properly funded Trust on the other hand, avoids probate and is not public record.

The probate process is often time consuming and costly and can tie up the assets for several months through the probate administration process. A properly funded trust does not require court involvement to administer and is cheaper and often less time consuming.

A Trust, if drafted properly, includes provisions governing your incapacity during your lifetime which can avoid a Guardianship proceeding. A Will does not have effect until your death and therefore will not benefit you if you become incpaciated during your lifetime.

These are just a few comparisons between a Will and a Trust. Your specific facts and circumstances will govern which estate planning mechanism is right for you and your family.

The following documents along with a Will and/or a Revocable Trust constitute a complete estate plan:

• Living will: A written declaration by an individual specifying directions as to use of life-prolonging procedures.
• Power of Attorney: A document nominating an Attorney-in-Fact to handle your financial affairs if you become incapacitated.
• Health Care Surrogate: A document appointing a Surrogate or Proxy to make health care decisions for you when you are unable to do so.

The above documents assist in avoiding court appointment of a Guardian to manage your affairs.

In addition to the foregoing, you can also execute a Pre-Need Guardian to direct who shall serve as your Guardian if a Guardianship is ever required.

Luckily there are experienced attorneys who can guide you in the decision making process involving your estate plan.

Call our office today to help you take the first step in securing your assets for your loved ones.