Estate planning can be a challenge when you aren't aware of the basic requirements of Florida law or how to interpret the statutes. You can consult with a lawyer if you are writing your will in Florida. However, you can also locate resources on your own and write an online Will. In this article, FastWill gives you the rundown on the most important things for Floridians to know when they are writing their estate plans.
Guide to Probate in Florida
Probate in Florida refers to the legal process through which a person's estate is administered and their assets are distributed after their death. State laws govern the Florida probate process and typically involve these steps:
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Filing the Petition: The probate process in Florida begins with the filing of a petition in the county where the deceased person, known as the "decedent," lived at the time of their death. If the decedent had a valid Will, this petition is typically referred to as "Probate of Will." If there is no Will, the person is said to have died "intestate," and the probate process is referred to as "Administration." The petition is usually filed by the person nominated as the personal representative in the Will or by an interested party if there is no Will.
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Appointment of Personal Representative: The court will appoint a personal representative (which is also known as the "executor" or "administrator") to manage the estate. If there is a Will, the personal representative is often named in the Will. If not, the court will appoint someone, typically a surviving spouse, family member, or close friend, to serve as the personal representative.
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Inventory and Appraisal: The personal representative is responsible for preparing an inventory of the decedent's assets and obtaining appraisals, if necessary, to determine their value. This inventory is submitted to the court for review.
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Notice to Creditors: The personal representative must provide notice to known creditors and publish a notice to creditors in a local newspaper. Creditors then have a specific period to file claims against the estate.
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Payment of Debts and Taxes: The personal representative is responsible for paying valid creditor claims, including outstanding debts, taxes, and administrative expenses from the estate's assets. Certain debts have priority, such as funeral expenses and estate administration costs.
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Distribution of Assets: After satisfying debts and expenses, the remaining assets are distributed to the beneficiaries named in the Will or according to Florida's intestate succession laws if there is no Will. The court oversees this distribution process.
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Final Accounting and Closing: The personal representative must provide a final accounting to the court detailing all financial transactions related to the estate's administration. Once the court approves the accounting and is satisfied that all matters have been properly handled, it will issue an order to close the estate.
Not all assets are subject to probate in Florida. Some assets, such as those held in a trust, assets with named beneficiaries (e.g., life insurance policies, retirement accounts), and jointly owned property with rights of survivorship, typically pass outside of the probate process.
You can find the probate laws that apply to Florida residents in Chapters 731-735 of the Florida Statutes.
Florida Laws Governing Wills
A Will is a legal document that determines who receives a person's property when they pass away. You can find the Florida law applicable to Wills in Florida Statute Section 732.502. To make a valid Florida Will, the person writing the Will, who is called the "testator," must be at least 18 years old and of sound mind. The testator must sign the Will along with two witnesses. The Witnesses must sign at the same time as the testator.
You do not need to notarize a Will in Florida for it to be recognized by the court. However, if you do get it notarized, it makes the probate process more efficient because the witnesses will not need to testify in court that they saw you sign the Will. When a Will is notarized it is called a "self-proving Will." If you want to make a self-proving Will, FastWill can connect you with a remote notary through OnlineNotaryCenter. The notary can then advise you on how to complete the process. The law that applies to self-proving Will is found in Florida Statute 732.503.
Laws Governing Living Wills in Florida
A Living Will is a type of Advance Directive. Advanced Directives are legal documents that explain your health care decisions in the event that you are unable to make such decisions for yourself. In Florida, these documents are covered by Florida Code Section 765.101. A Florida Living Will is a statement outlining which medical care a person wants to accept or reject if the person is unable to make his or her own decisions. In Florida, the Living Will must do three things. First, state how and when life-sustaining medical treatment should be provided in the event a person is incapacitated. Second, it must be signed by the person making the Living Will. Third, it must be signed by two witnesses. Fourth, it must be signed by everyone at the same time and in the same location.
Summary Administration in Florida
Summary probate, also called summary administration, is a simplified probate process that applies to small estates and in situations where the decedent has been deceased for more than two years. A person whose estate is valued at less than $75,000 qualifies for a summary administration in Florida. Chapter 735 of the Florida Code covers the process of settling small estates in Florida.
Making a Florida Will Online
You can make a Florida Will online, without the help of a lawyer, as long as you follow the appropriate Florida laws. FastWill can help you draft a Will, a Living Will, and other documents appropriate for your circumstances.
