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Tag Archives: estate planning. probate

DO I NEED TO HAVE MY WILL REVIEWED WHEN I RELOCATE TO FLORIDA?

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Joseph Klein is a personal injury and estate planning lawyer in Brevard County Florida.

Joseph Klein is a personal injury and estate planning lawyer in Brevard County Florida.

By: Joseph S. Klein

Of course! When relocating to Florida permanently, there is more to benefit from than just the beautiful weather. While it is likely that the Florida probate court will honor the will you drafted in the previous State you resided. Florida offers many estate planning benefits that your prior State may have not. For example, Florida is one of the only States that offers homestead protection, which among other things protects your home from creditors. This only applies to your permanent residence, so if you owned your house in Florida before permanently moving here, then most likely your will does not take this into consideration. Another great example is that Florida doesn’t have an estate tax. Unfortunately, moving here doesn’t eliminate the Federal estate tax.

From an even simpler perspective, upon passing, the will must be probated. This is not a fun process in any State, but chances are your current will takes into consideration your previous State’s probate process and not Florida’s. In Florida, the individuals who witnessed you signing the will may be called to testify to its authenticity. In many instances, this can be avoided by having your witnesses complete an affidavit at the same time of your will signing. However, if this was not done, then it may be hard to get your witnesses to Florida and the probate process will take even longer. Additionally, even though your will may be valid in another State, there can be many reasons that invalidate it in Florida (see valid will requirements). This would be the worst case scenario and means that you would die intestate. When you die intestate, your estate is devised based on Florida’s probate laws and not your final wishes. For example, if you wanted to leave something to someone special who is not related to you, most likely they will be left out.

At DKN Legal, PLLC, we want to help you and place your mind at ease that your final wishes will truly be honored and provide relief from the stress that your loved ones are experiencing. Call today to schedule your free estate planning review.

Probate Without Probate?

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Jeff NuckolsProbate Without Probate?

By: Jeffrey R. Nuckols, Esq.

With the exception of the estates of decedents who have planned to avoid probate, most estates in Florida require probate. However, under specific and perhaps narrow circumstances, Florida law provides for disposition of personal property without administration – what one might refer to as “probate without probate.” Fla. Stat. 735.301 (2013).

The statutory provision can be helpful for the survivor of a decedent whose estate consists of so small an amount of personal property as to make probate cost prohibitive. Some modestly-sized estates might also qualify, see Fla. Stat. 735.301(1) (2013), but I will focus here on only the third category of property in Fla. Stat. 735.301(1) (2013). There the statute describes “nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.” Fla. Stat. 735.301(1) (2013).

The other two categories of personal property appearing in the statute are exempt personal property as appears in Fla. Stat. 732.402 (2013) and personal property exempt from the claims of creditors as in the Florida Constitution. Fla. Stat. 735.301(1) (2013). However, the category of personal property that I am discussing here need not be exempt.

So, what property falls into this third category? Always consult an attorney to help you determine whether funeral expenses or medical and hospital expenses fall within the statute’s meaning, but Fla. Stat. 733.707(b) (2013) might provide guidance for that determination for funeral expenses and Fla. Stat. 733.707(d) (2013) for medical and hospital expenses. Fla. Stat. 733.707(b) (2013) describes “[r]easonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.” Fla. Stat. 733.707(d) (2013) describes “[r]easonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.”

Notice that the statute provides for estates containing only personal property. That means that if the estate contains real property, like a house, that must transfer through the probate process, then the disposition of personal property without administration is not available. Fla. Stat. 735.301(1) (2013).

Why does Florida provide for the disposition of personal property without administration? Well, one reason might be to make it simpler and less costly for an individual who has paid those preferred funeral expenses and medical and hospital expenses to recover those funds from a very small estate.

Nothing in this article should be construed as legal advice or as forming an attorney-client relationship. If you have any questions about your particular situation please do not hesitate to contact Jeffrey R. Nuckols
at (321) 329-5449 ext. 2
for a free telephone consultation.