Florida Probate Attorney, David S. Luber, LL.M. has been a Florida attorney since 1995. He is originally from suburban Chicago but like some Florida snowbirds chose to avoid winter so he attended the University of Arizona where he obtained his Bachelor of Arts degree. Next, he moved to Fort Lauderdale in 1992 for law school. After receiving his law degree from Nova Law Center in Fort Lauderdale he received an Estate Planning Master of Laws (LL.M.) from the University of Miami, the only school in the country offering the degree. The Estate Planning Masters of Law provided extensive additional education regarding wills, trusts estates, tax law, probate and other estate law related subjects. As a law student he received several awards for outstanding leadership, service and academic excellence. After graduating University of Miami he was selected and served as a director of the alumni association.

David is admitted as an attorney to the Illinois and Arizona bars although currently inactive. He is a Florida Probate Attorney and Estate Lawyer actively serving clients from a Broward County Florida law office. He assists with Florida Probate, Estate Settlement, Probate Administration, Wills, Trusts and Inheritance Law issues focusing on Broward and Palm Beach County Probate Estates. He founded The Estate Planning Law Firm, P.A. and his law firm is based in Hollywood.

David keeps up with the frequently changing laws through continuing estate law education. He is a member of two Broward County estate planning councils which have frequent speakers. He served as a past president of the estate planning council meeting in Hollywood. David is a member of the Florida Bar Real Property Probate and Trust section, the Broward County Bar Association Probate and Trust Section and the South Broward Bar Association. He has also been a member of the National Academy of Elder Law Attorneys and has taught as an adjunct professor for a paralegal course on Florida Probate in Broward County.

As a Florida Probate and estate attorney he offers accessibility, personal attention, responsive and professional service with a caring attitude seeking to help clients with their individual Florida law and related needs to achieve all their objectives. Also if anyone seeks help in an area of law he does not practice or a related profession he can typically help put them in touch with an experienced South Florida professional who can assist them. David offers free phone consultations regarding Florida probate and estate settlement law.

Meeting with a Florida estate attorney to help plan an estate can help preserve an inheritance, provide peace of mind that an agent has been provided for a living will, health care surrogate and power of attorney, intentions made clear in the event of incapacity so that health and financial affairs proceed as desired and see that beneficiaries are cared for as intended. The Florida estate attorney can also often help advise so probate could be avoided and administration delays and costs decreased. Also the potential for future family disputes and Florida will contests or probate litigation can be minimized. These are all important elements in preserving the integrity of an estate, passing the maximum inheritance and resolving the estate matter as efficiently as possible.

Frequently people do not plan in advance and they have assets remaining in their sole name without beneficiary designations and therefore need help with Florida probate and estate settlement. Attorney David Luber helps with regular formal probate cases when the non exempt assets are greater than $75,000, summary probate law when estates are less than that amount and ancillary probate when a decedent is domiciled in another state but owns Florida real estate in their sole name.

As a Broward County Probate and Estate Lawyer in Hollywood, he focuses on local wills and trusts and probate law throughout Florida, concentrating on Broward and Palm Beach County in the following practice areas:

• Florida Probate Law
• Summary Probate
• Ancillary Probate
• Probate for Estates with Wills and Probate Estates with No Wills
• Florida Estate Settlement
• Inheritance Law
• Florida Probate and Estate Administration
• Florida Wills
• Advice Regarding Avoiding Florida Probate
• Information Regarding Florida Will Contests and Probate Litigation
• Help Clearing Title to Florida Real Estate Through Probate
• Florida Estate Law
• Florida Revocable Trusts
• Living Wills
• Power of Attorney
• Florida Elder Law
• Wrongful Death Probate Law help

Florida Probate and Estate Administration services provide steady legal guidance after a family member has died. David provides conscientious, considerate probate help at a time that is often difficult for many clients. He can also explain Florida estate law and advise regarding what valid causes of action are for those wanting to bring a will contest or estate litigation if they believe that they have been improperly excluded from an inheritance.

Wills sometimes called a Last Will and Testament, to transfer property you hold in your name to the person(s) you want to receive it. A Will also typically names someone you select to be your Personal Representative (in other states also known as Executor) to carry out your instructions and names a Guardian if you have minor children. A Florida Will only becomes effective upon your death, and after it is admitted to probate.

Health Care Surrogate appoints a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide informed consent. Living Will or Directive to Physicians is an advance directive which gives doctors and hospitals your instructions regarding the nature and extent of the care you want should you suffer permanent incapacity, such as an irreversible coma.

Florida Durable Powers of Attorney for Property appoints a person you designate to act for you and handle financial matters should you be unable or perhaps unavailable to do so.

Florida Revocable Trust can be used to hold legal title to and provide a mechanism to manage your property. You can select a person or persons ? often yourself ? as the Trustee(s) to carry out the instructions in the Trust and name one or more Successor Trustees. Unlike a Will, a Trust usually becomes effective immediately, continues in force during your lifetime even in the event of your incapacity, and continues after your death. A Revocable trust allows the person who creates the Trust to make future changes, modifications and even to terminate it.

If you or someone you know needs help from a Florida Probate Attorney call Attorney David Luber, today at 866-685-0670, for a free consultation. He assists with Florida Probate and estate law related cases throughout Broward County including Hollywood, Fort Lauderdale, Pembroke Pines, Plantation, Davie, Coral Springs, Parkland, Cooper City, Lighthouse Point, and Coconut Creek. Probate and estate settlement help throughout Palm Beach County including Boca Raton, Jupiter, Palm Beach Gardens, Palm Beach and North Palm Beach, Florida. In addition to focusing on Palm Beach County Probate and Broward County Probate he can also often help with Florida Probate and Estate Administration in other Florida counties.

Florida Probate, Wills, Trusts, Inheritance and Estate Law Information

Florida Probate:

Florida Probate is the legal process of transferring property following the death of someone domiciled in Florida. Through a Florida probate the intentions of an individual regarding transfer of his or her property at the time of death are confirmed by the court (typically through a Will or if none by intestate succession); his or her property is collected, certain debts are paid from the estate and the property is distributed accordingly Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a Will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Florida Wills:

A Florida Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, and formation of testamentary trusts. In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Florida Will Contest Litigation:

A Florida Will Contest is a type of litigation that challenges the admission of a Will to Florida Probate. Issues that are likely to spur the contesting of a Will include:

• The testator lacked mental capacity, i.e. was senile, delusional or of unsound mind at the time the documents were created;
• The testator was subjected to fraud, coercion or undue influence during its creation and implementation;
• There are ambiguities in the document or
• The Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

Florida law specifically prohibits no contest clauses in wills from being enforceable in Florida Probate cases. If there is any legally valid cause of action claimed a will dispute can proceed. Florida Will contest attorneys present the facts to the court seeking to contest or uphold the will.

If the Will is thrown out, the Florida Probate court, overseeing the will contest depending on the specific facts and circumstances may disallow only the part of the Will that was challenged; throw out the entire Will, distributing the property as if the person died without a Will or use the last previous Will.

Estate Planning:

Series of documents which state the beneficiaries and terms for distribution of assets. Seeks to minimize potential taxes and fees (including Federal and State gift and estate taxes), and sets up contingency planning to make sure wishes regarding health care treatment are followed.

Powers of Attorney:

Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal) to another (attorney-in-fact or agent). When a person becomes incapacitated, the government or the court often steps in and requires the appointment of someone to represent and make legal decisions for the incapacitated person. One of the ways to avoid this is to use a Power of Attorney. A Power of Attorney is a written document that can be limited in scope, or it can allow one person to give another the full power and authority to represent him or her regarding financial affairs. It remains effective after incapacity of the principal although ceases at the time of death. The agent must act in the best interests of the principal or they may be sued for abuse of power of attorney.

Florida Estate Litigation:

Florida Estate litigation is a legal dispute usually initiated by someone who feels they did not receive all they were entitled to in a Will or intestate estate. Florida will contests may be based on undue influence, lack of testamentary capacity, fraud, or improper execution. Other reasons to pursue Florida Estate Litigation include disputed appointments of personal representatives (PR's), breach of fiduciary duty of PR, removal and surcharge actions against a PR, objections to estate inventory and accountings, abuse of power of attorney actions when property should have otherwise been left in the estate and litigation to determine heirs. When any of the above arise a probate litigation lawyer can help a beneficiary / heir receive everything they are legally entitled to receive from the estate.

Estate Tax Returns:

The money and property you own when you die (your estate) may be subject to federal estate tax. Most estates are not subject to the tax. Less than 2% of all estates are subject to the estate tax. An estate tax return generally will not be needed unless the estate is worth more than the applicable exclusion amount for the year of death. In 2008 this amount is $2 million and in 2009 it will be $3.5 million.

Estate taxes are different from, and in addition to, probate expenses and final income taxes owed on income the decedent earned in the year of his or her death. They also are separate from inheritance taxes that are collected by some states. Florida has no state estate tax or inheritance tax.

Attorney David Luber helps with the areas of law listed below:

• Florida Probate Law
• Florida Summary Probate
• Ancillary Probate
• Probate for Estates with Wills and Those with No Wills
• Florida Estate Settlement
• Inheritance Law
• Florida Probate and Estate Administration
• Florida Wills and Living Wills
• Advice Regarding Avoiding Probate
• Information Regarding Florida Will Contests and Probate Litigation
• Florida Revocable Trust Law
• Florida Estate Law
• Help Clearing Title to Florida Real Estate Through Probate

Alphabetical Listing of Trust and Estate Law Definitions

Administration - Probate or Trust: The process of handling the affairs of a deceased person's estate or a trust. For a Florida decedent or one owning real estate in Florida in their sole name it is Florida Probate and Trust Administration also referred to as Estate Settlement.

Ancillary Administration: Probate proceedings in another state. This is usually necessary when the deceased person owned real estate in their sole name in a state other than his or her home state. It could be avoided by putting the property into a trust or passing the property so the beneficiary (beneficiaries have) has a remainder interest in which the property will pass to them by operation of law upon the death of the decedent. With limited exceptions such as requiring documents from the decedents probate in their home state ancillary probate in Florida is generally treated according to the same rules as if the decedent were domiciled in Florida. For example if a person is domiciled in New York but owns a winter home in Palm Beach in their sole name an ancillary probate would be needed in Palm Beach.

Applicable Exclusion Amount an amount that can pass free of estate tax. Currently this amount is $2m and is scheduled to rise to $3.5m in 2009 and be unlimited in 2010 prior to returning to $1m in 2011 if unchanged. This amount will likely be revised to around $3.5 million indexed for inflation. When there is a husband and wife the estates need to be properly planned though or the exclusion amount of the first spouse to die may be wasted. The Gift Tax Exclusion amount remains at $1m and is not currently scheduled to change.

Attorney-in-Fact - Power of Attorney:  The person selected to have the authority to act on the behalf of a principal. A Power of Attorney can be any adult that the principal selects. (He or she need not be a Florida attorney.) Typically, people appoint an attorney-in-fact in a power-of attorney, granting them the power to handle any financial affairs or complete nearly any forms that the principal could do. The authority of the power of attorney cannot last beyond the life of the principal. The power of attorney typically becomes effective at the time that it is signed and not at the time of disability. Florida law and section 709.08 of Florida Statutes provide they are durable powers of attorney meaning that it is not impacted by a persons subsequently disability. The agent named in the Power of Attorney must act in the best interests of the principal (person whose property the document is regarding) or they can be sued for abuse of power of attorney. Abuse of Power of Attorney appears to be getting more frequent especially after additional facts come to light following a persons death. People who would be estate beneficiaries but for the abuse of power of attorney can hire estate litigation attorneys to pursue their claims in probate court.

Annual Gift Tax Exclusion: Each person has an annual gift tax exclusion currently set at $12,000 per person per year free of gift tax. A husband and wife can elect to split gifts for a year and are then able to give $24,000 to an individual in a year for gifts of a present interest with no tax. Other then spouses who are not US Citizens spouses can give one another an unlimited amount of gifts of any type of interest during their lives and it will not be taxable at that time.

Assets Subject to Florida Probate Administration: Refers to assets that are in the sole name of the Florida decedent without beneficiary designation and do not pass by contract. They therefore need to go through probate so the title can be changed to those entitled to receive them.

Beneficiary: In the estate planning context this is a person entitled to receive property that was left to them by a will or trust or as a named beneficiary such as a retirement account or life insurance policy or as a transfer on death beneficiary of a bank account or other asset. This is contrasted by a person who receives property merely because of their family or marital relationship to the decedent through intestate succession and is referred to as an heir.

Charitable Trust: One of several different types of charitable trusts, including Charitable Lead trusts and Charitable Remainder Trusts, established to benefit a particular charity or the public. Typically charitable trusts are established as part of an estate plan to lower or avoid imposition of Federal (and some states') estate and gift taxes and/or to save capital gains tax. It can be a win win situation since the donor is able to achieve a tax reduction while still providing for a worthwhile charity that provides a service to the public. When this is done during life an income tax deduction is available then the property is out of the estate for estate tax purposes or will generate a deduction to remove it. Some of this tax saving is often put into the premiums for a life insurance policy as a wealth replacement technique. The insurance policy can be designed so the payment of the premiums will not result in a gift and the value of policy is not included in the estate. Used in this combination the donor is able to provide for a gift to charity through the charitable trust they can still receive income from the trust and despite their gift to charity their children can end up with as much and in some cases more money then if no charitable trust planning had been taken.

Charitable Lead Unitrust (CLUT): Income goes to charity and remainder to one's heirs or beneficiaries. Generally for the very rich and for those whose children won't need the income until years later when the trust ends. For example Jacklyn Kennedy Onassis used this to save taxes when she was seeking to benefit her children, John Kennedy Jr. and Carolyn Kennedy.

Charitable Remainder Trust (CRT):  A trust funded with assets that go to charity upon death. The donor/trust creator can sell the assets without paying capital gains taxes and receive an annual income. Will also receive a tax deduction for the charitable gift and eliminate appreciated assets from one's estate.

Charitable Remainder Annuity Trust:  A charitable remainder trust in which the trust donor is paid an annual fixed dollar amount. Charitable Remainder Unitrust--This pays an annual fixed percentage of the fluctuating value of trust assets.

Claim: Claims are debts of the estate. There are two types of creditors in Florida a known or reasonably ascertainable creditor and all others. For claims the Personal Representative is aware of or should be aware of a creditor in Florida has the greater of 30 days from being served or 3 months from publication to file a claim in the probate court or the claim will likely no longer be valid. For all other creditors they are limited to 3 months from publication. If there is not enough money in an estate to pay all the claims then Florida statute 733.707 would determine the order of payment.

Codicil: A written amendment to a will.

Community Property:  Property acquired during a marriage and while living in one of the 9 community property states . As a general rule, everything derived from the earnings of either spouse is shared equally by a husband and wife. Each spouse owns only one-half of the community property because the other half belongs to the other spouse. Community property rules can be modified by pre-marital and post marital agreements made by the spouses. Florida law is a separate property state although equitable distribution of Florida Statute 61.075 controls property distribution between spouses in the event of divorce without valid prenup and Florida surviving spouse has elective share and homestead rights. Property that was Community property may retain its character as Community Property though when someone moves from one state such as Arizona to another such as Florida.

Community Property States: States in which community property laws apply. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington State and Wisconsin are considered community property states.

Cost Basis: The amount originally paid for property. The tax basis is the value that is used to determine gain or loss for income tax purposes. Generally, the tax basis will equal the cost basis plus the cost of capital improvements, less depreciation. Once the property is transferred upon the owner's death, it is revalued as of the date of death; this is called the stepped up basis for Federal Income Tax purposes. Property that is transferred by gift during life has a cost basis instead of a stepped up basis. The lower the basis is in a property the higher the capital gains tax will be upon sale.

Devise: To give away real, personal or intangible property under a will or trust.

Devisee: An entity or a person selected in a will or trust to receive a devise.

Domicile: The place that a person presently lives with the intent to remain. This is usually a persons permanent residence but if they are merely away on military service, to receive medical care or go to college for example but intend to return home to another place that they intend to return to will be the domicile. The law governing the state and county of domicile will control the disposition of the person's property upon their death other than out of state real property in their sole name.

Donee:  A person or entity who receives a gift. This can also be referred to as a beneficiary.

Donor:  A person who makes a gift.

Escheat:  Property that passes back to the state of Florida because there was no will or trust validly directing the property and no heirs at law who it would pass. This is extremely rare as the intestate laws of Florida have numerous options if property is not validly devised to anyone. Florida Statute 732.107 states Florida estate law for property which may escheat.

Estate:  For probate purposes whatever was in the sole name of the decedent upon his death and does not pass to another by operation of law, by contract, or as a named beneficiary and this property is subject to probate administration. For US Estate Tax purposes, it refers to all of a deceased person's assets that are included in the person's estate for tax purposes. Items such as an Irrevocable Insurance Trust on the decedents life may be excluded from their estate. The current exemption amount that can be excluded from an estate for tax purposes as of 2008 is $2 million. This is scheduled to increase to $3.5 million in 2009 and be unlimited in 2010 then drop to $1 million in 2011 if the law is not changed by then. It appears likely that the exemption amount will not be reduced back to $1 million in 2011 although that is the current law. Most who follow the estate law changes including probate and estate attorney David Luber expect the Congress to agree to something in the range of the 2009 law to have an exemption of around $3.5 million but then have it adjusted for inflation.

Estate Planning:  The process of preparing and planning for a persons financial, health care and personal affairs. It includes documents to designate an agent in the event of a future disability such as a living will or health care surrogate to assist with health care matters if one is unable to do so, a durable power of attorney to help with financial matters, and wills and trusts to pass financial property to family, friends and possibly charitable organizations. Estate Planning can ensure that a person is able to pass their property exactly as they desire instead of how Florida intestate succession law or their home state would dictate it pass and then if trusts are prepared they can direct how the property will be handled long after the grantor is dead and when properly funded help avoid the need for both probate or ancillary probate. Estate Planning is critical for all people and not merely those with a large estates. It determines who the guardian of minor children would be, who the personal representative/trustee (if there was also a trust) would be that handles the affairs and a guardianship from having to be imposed where the court would take control. Florida probate could be avoided as well through the use of trusts and or proper beneficiary designations for the way that property is held saving time and money. Additionally if it is a large estate money could be saved that would otherwise have to be paid for estate taxes. Once all the persons assets exceed a certain exemption amount the estate is taxed at over 40%. With proper planning substantial amounts of money can be saved.

Exempt property:  Florida law (Florida Statute 732.402) provides the right of a surviving spouse or children to receive tangible personal property such as furniture and furnishings within the homestead property up to $10,000 as well as the automobiles regularly used by the decedent if they are not devised to someone else. These properties are not subject to any claims except those with perfected security interests on them. Those entitled to such designation may be required to file the probate forms to declare such property as exempt within 4 months of publishing notice of administration of the probate administration. A surviving spouse and/or children are also entitled to a designation of homestead property that the property is exempt from creditors.

Fair Market Value:  This is what a willing buyer will pay a will seller with neither being under a compulsion to buy or to sell and both having knowledge of all relevant facts.

Family Allowance:  An allowance that a surviving spouse, minor or dependent children are entitled to from his or her deceased spouse's Florida estate. If there is a surviving spouse this is typically given to them and may be up to $18,000. It is intended to provide some money for the spouse and family to live on during a probate administration.

Fiduciary:  This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly. Most litigation of this type would be heard by a judge in a Florida probate court.

Formal Probate:  A proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by chapter 733 of Florida statutes. When there are no creditors and non exempt assets of less than $75,000 subject to Florida probate it is quicker and easier to proceed with a Florida Summary Probate.

Gift:   A voluntary transfer of property for less than full and adequate consideration in return. If Internal Revenue Service is to recognize a transfer as a gift, the donor(s) must unconditionally transfer all title and control of the property to the recipient(s) at the time the gift is given. It is not a completed gift if full control over the property is not given away. With adequate disclosure of the gift the Internal Revenue Service is not allowed to revalue the gift after 3 years. Transactions can be a combination of sale and gift for example a car worth $10,000 given to a child for $2,000 would likely be a sale for $2,000 and a gift of $8,000.

Grantor:  The description for a person who is transferring their property through a trust or a deed. Guardian: An adult appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or for a legally incapacitated person's personal care and nurturing.

Grantor Trust:  For income tax purposes this is a trust, in which the grantor or a third party, because of certain rights to income or principal or certain powers over the disposition of income and principal, is treated as the owner of the trust and taxed on the income thereof. Consequently, a grantor trust is not treated as a separate entity for income tax purposes. A grantor does not need to get a separate id number for a revocable trust until the trust becomes irrevocable.

Heir:  Person, who inherits property from the estate of a deceased person who died without a will. Holographic Will A will written entirely in the testator's own handwriting.

Florida Homestead Exemption:  In Florida, homestead has many meanings depending on the situation one refers to a surviving spouse's or lineal heirs right to receive the primary residence of their family member free of claims from creditors other then perfected security interests on it such as the mortgage. It also cannot be transferred if there are any minor children or a surviving spouse (other than to a surviving spouse if there are no minor children) and would pass with a life estate to surviving spouse and a remainder interest in decedents children if there is a spouse and children unless devised to spouse as permitted. If owned as tenants by the entireties by husband and wife it is not considered homestead. In Florida there is no limit to the value of the property that is covered by a Florida homestead exemption from creditors. Two additional components of homestead are that the values cannot increase by more than 3% each year for purposes of tax assessments each year and each homestead now has the first $50,000 exempt from tax assessment.

Intangible Personal Property:  The value of such property is not derived from the property itself but what it represents. For example types of this property include cash, stock, bonds, mutual funds, and bank accounts. The paper themselves has virtually no value but the promise to pay or designation of a certain value by the company, government or stock market provides the value of the property. As of 2007 Florida has now abolished the intangibles tax.

Inter Vivos Trust:  A trust that takes effect while a grantor is still living.

Intestate:  Refers to dying without a will or other designation of how one's property should pass.

Intestate property will pass to the decedents heirs. In Florida if a person has a surviving spouse and children the spouse will receive the first $60,000 then 50% of the remainder if all the children are the spouses children as well otherwise the spouse will receive 50% and the children will receive 50%. If there is only a spouse or a children the spouse or children receive all the property.

Intestate Succession:   The distribution of property to heirs according to the statutes of the State of Florida upon the death of a person who owned the property but did not leave a valid will. As provided above and 732.101-109 of Florida statutes.

Incidents of Ownership:  Includes a variety of rights and powers that an insured decedent may have held over a life insurance policy; the possession of one or more of these incidents of ownership within three years of death will bring the policy proceeds into the insured's gross estate. This may subject them to estate tax if the estate has more money then the applicable exclusion amount under current law. As of 2008 this amount is $2 million and will be $3.5 million in 2009. If the decedent is subject to state estate taxes from a state other than Florida this could also cost additional money and states often times have their state estate taxes starting at a level much lower than the federal exemption. This is not an issue in Florida though as there is no state estate tax or inheritance tax in Florida.

Income Beneficiary:  The beneficiary of a trust who is entitled to receive the income from it.

Income in Respect of a Decedent (IRD):  Income earned by a decedent or income to which the decedent had a right prior to death, but which was not properly includible in his or her gross income prior to death (This is Internal Revenue Code section 691).

Individual Retirement Account (IRA):  A tax-deferred retirement account for an individual that can be established by a person with earned income and the spouse who files a joint return. Earnings accumulate tax-deferred until the funds are withdrawn beginning at age 59.5 or later and are required to be started by the age of 70.5 (or earlier then 59.5, with a 10% penalty). A Roth IRA does not provide an initial tax deduction for the money but both the money and the subsequent appreciation grow tax free and will pass tax free when the property is withdrawn. Distributions are not required to be started upon reaching 70.5 and it can continue to accumulate tax free.

Inventory:  A list of the assets of the decedent or disabled person that is prepared by an attorney and signed by the fiduciary (personal representative or conservator/guardian). In Florida this is required to be filed in a Florida Probate court.

Irrevocable Trust:  A trust that is not amendable or revocable by the grantor. Can be created during a grantor's lifetime, often called an "inter vivos" trust, or upon a grantor's death, often called a testamentary trust. Some common types of irrevocable inter vivos trusts include life insurance trusts, gift trusts, generation skipping trusts, Qualified Personal Residence Trusts (QPRT) Grantor Retained Annuity Trusts ("GRAT"), Intentionally Defective Grantor Trusts, Charitable Remainder Annuity Trusts (CRAT) and Charitable remainder Unitrusts (CRUT), Charitable LEAD Annuity Trusts (CLAT) and Charitable Lead Unitrusts (CLUT). Some common types of testamentary trusts include, unified credit exemption trusts, marital trusts, generation skipping trusts, testamentary charitable remainder trusts and charitable lead trusts.

Insurance Trust:  An irrevocable trust established to own an insurance policy or policies and thereby prevent them from being included in the insured's estate. The insured must not retain any incidents of ownership. These trusts are typically used just by those who anticipate they may have more property then the applicable exclusion amount would allow them to shelter upon their passing or the passing of their spouse so it can save money from potentially having to pay estate taxes on the proceeds. There are additional administrative costs and responsibilities involved with this but with the estate tax starting at around 41% it can be a very useful way to save on estate taxes.

Intentionally Defective Grantor Trust:  An irrevocable inter vivos trust created by a grantor for beneficiaries other than the grantor that attributes all income tax to the grantor. Generally used when the grantor wants to irrevocably gift the property to the beneficiaries and exclude the property from the grantor's taxable estate for estate tax purposes, but intends that the transfer be ignored for income tax purposes. Often used in conjunction with a sale of discounted assets by the grantor to the trust, to avoid capital gain on the sale of the assets.

Joint Tenancy:  A form of joint asset ownership by two or more persons in which each person has an equal undivided ownership interest that passes directly to the surviving joint tenant(s) upon the death of any joint tenant. Any joint tenant can petition the court seeking to compel partition of a joint tenancy asset but they cannot do so with tenancy by the entireties. (A form of joint tenants only available to husband and wife). If the joint tenants are not husband and wife and the intention is that it pass with right of survivorship in Florida it is important that the deed specifically provide that it shall pass with the rights of survivorship.

Kiddie Tax Unearned income: (dividends, rents, interest, etc) Unearned income of a child under age 18 beyond an exemption amount such as $850 will be taxed to the child at the parent's income tax rate. It used to only apply to children under 14 but was raised to 18 in 2006.

Lack of Marketability Discount:  When the value of an asset is less than its initial or expected fair market value due to unusual circumstances that make it not readily saleable. For example, a limited partnership interest.

Legally Incapacitated Person: A person who has been determined by a court as not capable of handling his or her personal and financial affairs. If someone is mentally incompetent they obviously lack testamentary capacity and any will or documents they sign prior to regaining capacity will be legally invalid.

Letters Of Administration: Letters are issued by the probate judge to a personal representative, showing that the personal representative has the authority to act on behalf of a Florida probate estate. Letters of administration can be issued to any Florida resident who is mentally competent and at least 18 years of age who has not been convicted of a felony and close family members (children, spouse, sibling etc) who live out of state. When there is a preference stated in a will that person will have priority to serve as Florida Personal Representative and receive Letters of Administration as long as they are allowed to serve. In Florida intestate estates the preference for who is named in letters of administration goes to the surviving spouse then the person selected by a majority in interest by the heirs.

Limited Liability Company (LLC):  An entity formed under state statute that has the legal characteristic of limited liability similar to that of a corporation, while it may qualify to be treated as a partnership for tax purposes. In Florida there is a 5.5% state tax on Limited Liability Companies. Limited Liability Companies are covered by Florida statutes chapter 609.

Limited Partner:  A partner in a partnership who can't participate in the management of the partnership's business. A limited partner's liability is limited to the loss of his or her investment in the partnership.

Limited Partnership:  Form of partnership composed of both a general partner(s) and a limited partner(s); the limited partners have no control in the management of the company and are usually financially liable only to the extent of their investment in the partnership.

Living Will:  A legal document in which an individual states, in advance of final illness or injury, his or her wishes regarding which procedures and equipment designed to extend life they choose to avoid. Basically it is a document that says if extraordinary measures are needed and they will merely extend the time but not the quality of life that the person chooses to have the plug pulled and to have a natural death. This is very important that it be done and not leave your fate to the government or the court who may act contrary to your desires.

Marital Deduction:  A deduction allowing for the unlimited transfer of any or all property from one spouse to the other generally free of estate and gift tax. This is usually just a deferral of tax and an exemption from it so it is usually not advisable to have everything pass outright in a manner that would qualify for the marital deduction. In the spouses revocable trust should be a credit shelter trust to make sure each spouse is able to use their exclusion amount.

Marital Deduction Trust:  A trust that qualifies for the marital deduction for estate tax and gift tax purposes. Several types of trusts so qualify, including: general power of appointment marital trusts, qualified terminable interest property trusts, and qualified domestic trusts. Unless the property is then deferred from tax but unless it is spent or is the spouse is under the exclusion amount upon the passing of the surviving spouse the marital property is subject to estate tax on the death of the surviving spouse.

Minority Discount:  A discount applied to the value of an interest in a corporation, limited liability company or limited partnership that is not publicly marketable to reflect the fact that a minority interest in the company has less value than a controlling interest, since the holder of the former cannot control business actions.

Minor:  In Florida, a person who is under the age of 18 who is not married or legally emancipated.

Notary:  is a person with a state commission to attest to the validity of the signatures on documents. A Florida will, trust and power of attorney should all be notarized and made self proved in addition to the two required competent witnesses.

Pay on Death (POD):  Designation is naming a beneficiary to receive an account balance on ones death. This is often also be referred to as Transfer on Death or (TOD). Personal Representative - The individual or individuals (or institution) named in a will or appointed by the Florida Probate Court who is responsible for gathering a decedent's assets, paying debts, taxes, and expenses, selling assets of the estate, if necessary, and distributing the remaining property and money according to the terms of the will (or the intestate laws of the state of residence). The personal representative must preserve and protect the estate assets and unless an accounting is waived account to the estate beneficiaries for estate income and expenses. The personal representative must file a federal and state estate tax return, if required, and must also file final state and federal income tax returns for the decedent, and, if necessary, federal and state income tax returns for the estate.

Per Stirpes:  A way of distributing an estate so that the surviving descendants will receive only what their immediate ancestor would have received if he or she had been alive at the time of death. State law definitions can vary. This means that if a decedent dies with two children one of who had predeceased him and the predeceased child left two children each of them will receive 1/4 of the property or collectively 1/2 of the property that was to go to the children and the other child would receive the other half.

Pour Over Will:  This is a Will used to transfer (pour over) into a trust, any property that is left in a person's estate after death.

Postnuptial Agreements: Contracts entered into by a husband and wife after marriage, defining the rights of each spouse in their marital, non-marital and jointly-owned property in the event of divorce, legal separation or the death of one of the parties. Florida law requires each spouse provide full and adequate disclosure of assets for postnuptial agreements.

Power of Appointment:  A right given to another in a written instrument, such as a will or trust that allows the other to decide how to distribute your property. The power of appointment is "general" if it places no restrictions on who the distributees may be. A power is "limited" or "special" if it limits the eventual distributee.

Prenuptial Agreement:  Contract couples can enter into prior to marriage in order to govern their respective rights in marital, non-marital, and jointly-owned property in the event of divorce, legal separation, or the death of one of the parties. It is advisable to execute these documents well in advance of the marriage to avoid the potential claim of duress as a means to attack the document. Each side should have independent Florida attorneys of their own choosing.

Pretermitted Child:  A child by birth or adoption who became a child after the execution of the current estate planning and was not mentioned in the will or trust. If a person has a child or children after executing their will and do not prepare a codicil after or name the child in the document the child will be entitled to receive the share they would be allowed if the estate were to pass by Florida intestacy laws. Unless it appears from the will that the omission was intentional; or The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.

Probate:  is a legal process through which (a) a judge determines whether or not the decedent's will if any is valid; (b) a personal representative is appointed to (1) collect the decedent's assets in his or her probate estate, (2) pay the decedent's legal debts, and (3) distribute the remaining assets in the decedent's Florida probate estate to the individuals or entities entitled to the assets in accordance with the will or laws of Florida intestacy; and (c) the court approves the transfer of the decedent's assets to the individuals and entities designated in the will or the laws of intestacy. The probate court will also determine the rights, if any, of a spouse and children to the decedent's property in addition to what they have been left in the will and supervises any claims filed against the estate, objections to claims and probate claims which are barred by time.

Revocable Trust:  A trust that one establishes during one's lifetime which is not part of one's will, but is established by a separate written trust agreement. It can be amended or revoked at any time as long as the grantor is not subject to undue influence and still has mental capacity. It can provide for professional management of the trust assets, help to ensure that the grantor or their trustee can maintain control over their affairs and specify specific ages or amounts at which beneficiaries receive property. Can also be phrased to take advantage of the applicable exclusion amount and/or marital deduction in order to save money on taxes. By providing for discretionary distributions and spendthrift language for beneficiaries other than the grantor better asset protection can be created. This trust will become irrevocable and no longer amendable when the grantor of the trust dies or becomes permanently incompetent.

Testamentary Trust:  A trust that is part of a person's will. It does not become effective until the person passes away and the will is admitted to probate court. For Florida decedent this will be admitted to the Florida Probate Court in the circuit where the decedent resided.

Testate:  This occurs when a person dies with a valid will in existence.

Testator:  The person who makes a will.

Trust:  A written document which provides for the management and disposition of assets. It normally involves three parties: the person who establishes the trust (In Florida usually called a grantor sometimes could also be called a donor, settlor, or trustor), a trustee, and one or more beneficiaries. A Florida Trust attorney can help prepare it.

Trustee:  A financial institution or adult who has mental capacity and has not been convicted of a felony that is designated to be responsible for the administration of a trust. There may be more than one trustee (co-trustees), and an individual and a financial institution may serve as co-trustees.

Qualified Personal Residence Trust ("QPRT"):  An irrevocable inter vivos trust under which a grantor transfers his/her interest in a personal residence to the trustee to hold for the grantor's use and occupation during a specified term of years, and, upon expiration of the term, the residence passes to the remainder beneficiary or beneficiaries. Primarily used to gift the residence to the remainder beneficiary that is susceptible to application of valuation discounts and actuarial discounts based on the grantor's age and the term of the trust, and is most beneficial if the residence is expected to significantly appreciate in value. It is allowed for a primary residence or one vacation home.

Qualified Terminable Interest Property (QTIP):  Property qualifying for the marital deduction at the election of the donor or the decedent's personal representative. The spouse retains a qualified income interest in the property for life, with the income payable at least annually. The corpus ultimately passes to a specified remainderman, under a special power of appointment given to the spouse. This can be especially helpful in second marriage situations where the donor wants the spouse to receive the income from the property but then have the property itself actually pass to their children (or in some other designated beneficiary).

S Corporation:  A corporation whose income is generally taxed to its shareholders, thus avoiding a corporate level tax. An election available to a corporation to be treated as a partnership for income tax purposes. To be eligible to make the election, a corporation must meet certain requirements as to kind and number of shareholders, classes of stock, and sources of income. The rules for S Corporations are in Internal Revenue Code Sections 1361-1378.

Section 2503(c) Trust for Minors A trust designed to comply with Section 2503(c) of the Internal Revenue Code so that a gift placed in such a trust for the benefit of a minor will qualify for the gift tax annual exclusion although they are not gifts of a present interest. 

Special Needs Trust/Supplemental Needs Trust: A trust established for the benefit of a disabled person to provide supplemental support without disqualifying the beneficiary from eligibility for governmental assistance programs such as Florida Medicaid. It is a discretionary trust that a person other then the disabled person serves as trustee for.

Spendthrift Trust: A trust established to provide a fund for an individual that includes a provision intended to secure it against that person's lack of caution and protect it against the claims of creditors. A person can typically prevent against their own creditors but they can achieve some asset protection for others they choose to provide for such as children who have a trust but a trustee with discretionary powers whether or not to distribute property.

Step Up In Basis:  A decedent's property that passes to others escaping capital gains tax when sold by the person who inherits the property. Persons inheriting the property receive it at date-of-death fair market value. (Internal Revenue Code section 1014) In effect, the basis in this property is deemed to be "stepped up" and does not reflect the decedent's original cost basis for determining applicable capital gains tax on the sale of the property.

Successor Trustee: The person or institution named in the trust agreement who will assume control of the trust if the original trustee dies, resigns, or becomes unable or unwilling to act. In sporting terms, it is like someone who sits on the bench and comes out to play only if the regular can't continue. There can be several layers of back-up trustees that take over in the order you designate.

Tax Basis:  The owner's cost of an asset for income and estate tax purposes as determined under the Internal Revenue Code and IRS regulations.

Tenants in Common: A form of asset ownership in which two or more persons have an undivided interest in the asset, where the ownership shares are not required to be equal, and where ownership interests can be transferred by will. Unlike joint with right of survivorship it would pass through an estate and not merely go to the survivor.

Tenancy-by-the-Entirety: Ownership of property only available between husband and wife. Each owns an undivided interest in the property which will pass with right of survivorship to the survivor. Creditors of just one of the spouses can not reach the property for claims. If the properties divorce it ceases to be tenancy by the entireties. While it is tenancy by the entireties joint action is needed to sell it.

Uniform Gifts To Minors Act: A method to hold property for the benefit of a minor, which is similar to a trust but the rules are governed by Florida state law and the child has to receive the property upon becoming an adult. 18 is an adult in Florida.

Unified Credit: amount also known as the Applicable Exclusion amount is an amount of assets that can pass without imposition of an estate tax or gift tax on the transfer. The estate tax now has an applicable exclusion of $2 million that can pass upon death if there have not been prior taxable gifts or this amount subtracted from the amount of prior taxable gifts. $1 million in taxable assets may be gifted during ones lifetime (in addition to annual exclusion amounts and other non taxable or otherwise exempt amounts such as payment of educational or medical expenses directly to the provider for a child) The estate tax exemption amount will rise to $3.5 million for 2009. In 2010 the estate tax is repealed and there will be no estate tax although under current law it returns to $1 million. The unified credit is expected to be raised to around $3.5 million before 2011 although it is unlikely to happen until at least 2009 with the presidential and other national elections having concluded.

Witness: A Florida will requires two witnesses and in order to be self proving also a notary who does not count as a witness. Each witness must be in the presence of each other, the notary and the testator at the time the time that the testator signs the will, the notary acknowledges it and the other witness signs the document. Unless the witnesses are personally known to the notary they should provide identification such as a Florida Drivers license.

If you or someone you know needs Florida Probate or Estate Law help in Broward County including, Hollywood, Fort Lauderdale, Pembroke Pines, Plantation, Davie, Coral Springs, Parkland, Cooper City, Lighthouse Point or Coconut Creek, or Palm Beach County Probate and Estate Settlement help in Boca Raton, Jupiter, Palm Beach Gardens or North Palm Beach, Florida, from a Florida Probate Attorney or Estate Lawyer, call Attorney David Luber today at 866-685-0670, or complete the contact form provided on this site for a free consultation.

Florida Probate FAQ'S

Hollywood Florida Probate Attorney David Luber helps clients with Florida Probate, Wills, and Estate Settlement Law focusing on Broward County and Palm Beach County Probate Estates.

WHAT IS FLORIDA PROBATE?

Florida Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

WHY IS PROBATE REQUIRED?

Florida Probate is needed to finish up the affairs of the decedent (Taxes, debts, a business if they were running one in their sole name) and properly retitle and distribute the assets of the decedent that were in his or her sole name.

WHAT ARE THE DIFFERENT TYPES OF FLORIDA PROBATE FOR FLORIDA DECEDENTS?

• Formal Probate: Formal Probate Administration is the primary method used to probate estates in Florida. If the Florida decedent has died within the past two years and the decedents property remaining in their sole name has a value in excess of $75,000 that is exempt from creditor claims or a will directs formal administration then a formal administration will typically be required. This will also be the type of probate often used when there are unsecured creditors in the estate.

• Florida Summary Probate:  Florida Summary Probate can be done when the will does not require formal probate as it rarely ever does, more than two years have passed since the death of the decedents death, or the property is worth less than $75,000 that is not exempt from creditors and typically when there are no known or reasonably ascertainable creditors. A Florida summary probate is a lot quicker process that does not require an inventory, an estate account when there are cash assets and publication of notice to creditors is optional although the beneficiaries remain liable for claims for 2 years after date of decedents death if they fail to publish notice to creditors. No personal representative needs to be appointed and thus no bond is ever required for a summary probate. It is a less time consuming and less expensive procedure for the probate beneficiaries or probate heirs when available.

ARE THERE OTHER METHODS OF PROBATE FOR NON FLORIDA RESIDENTS?

Yes, Ancillary Probate is done when a decedent is domiciled in another state but has Florida Real Estate owned in their sole name. If probate is needed in the state the decedent was domiciled in probate will need to be started their first and some documents from the other probate court along with an exemplified copy of the will if there is one needs to be deposited with the Florida Probate court otherwise the process is very similar to typical Florida probate and can be handled as either an ancillary summary probate or a formal probate with ancillary letters of administration being issued.

WHO HAS PRIORITY TO SERVE AS PERSONAL REPRESENTATIVE (PR)?

For Florida probate cases in which there is a will admitted to probate the person named in the will or the successor. If no successor a person selected by a majority in interest of the estate.

For a probate estate with no will a surviving spouse has priority.

Majority in beneficial interest of the estate as selected by the heirs at law if spouse does not serve when there is no will or validly nominated PR.

WHO CAN SERVE AS PR of a FLORIDA PROBATE?

Anyone can serve unless they are:

• Under 18 years of age
• Convicted of a felony
• Physically or mentally unable to handle the estate duties or
• Not a Florida resident and not a close relative eligible to serve.

WHO CAN SERVE AS PR DESPITE NOT BEING A FLORIDA RESIDENT?

• A legally adopted child or adoptive parent of the decedent;
• Related by lineal consanguinity to the decedent;
• A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
• The spouse of a person otherwise qualified under this section.

WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PR DO?

The personal representative is the person, bank or trust company appointed by the Court to be in charge of the probate administration of the Florida decedent’s estate. Some other states use the term executor but they are known as the PR in Florida. The personal representative has a legal duty to administer the estate pursuant to Florida estate law. The personal representative must:

• Identify, gather, value and safeguard the decedent’s probate assets;
• Publish a "Notice to Creditors" in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law;
• Serve a "Notice of Administration"or obtain waivers to provide information about the estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s estate;
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify these creditors of the time by which their claims must be filed;
• Object to improper claims, and defend suits brought on such claims;
• Pay valid claims;
• File tax returns and pay any taxes validly owed;
• Employ professionals to assist in the administration of the estate; for example, attorneys, certified public accountants, appraisers, real estate agents, and investment advisors;
• Pay expenses of administering the estate;
• Pay statutory amounts to the decedent’s surviving spouse or family;
• Distribute assets to beneficiaries;
• Obtain Waivers or provide accountings to interested parties
• Close the estate

IS AN ATTORNEY REQUIRED FOR ALL PROBATE ADMINISTRATION IN FLORIDA?

Yes Florida law almost always requires an attorney be involved. Florida law requires an attorney represent the Personal Representative/Estate for nearly all probate matters except the disposition of personal property without administration.

WHAT ASSETS NEED TO GO THROUGH FLORIDA PROBATE PROCEEDINGS?

The probate estate assets are those assets in the decedent's sole name at death without beneficiary designation. Assets that are owned so they will pass by operation of law such as joint tenants with right of survivorship or transfer on death accounts, or by contract such as insurance proceeds that pass a named beneficiary other then the estate are not probate assets.

WHAT IS A WILL?

A will is a writing, signed by the testator who is 18 years of age or older (or an emancipated minor) who has testamentary capacity regarding what they are doing and that is signed by two witnesses and in order to make it self proved needs to be notarized. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee and naming a guardian for minor children. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the default provisions provided in Florida intestacy law. Without a valid will, or if the will fails to properly dispose of all of the assets, then Florida statutes provide who shall receive such property. In the absence of a direction regarding the naming of a personal representative the default provisions of Florida law controls. A will may provide for a testamentary trust which is a trust that will not come into existence until after the death of decedent and after the will has been admitted to probate. Although a will does help designate who shall receive assets in a decedents sole name it does not help to avoid probate. A will only becomes effective upon the death of the testator - person disposing of their property at which time the property in their sole name requires probate for to the assets to reach the beneficiaries designated in the will and have the title to be changed to their name.

WHO RECEIVES THE PROPERTY THAT WAS LEFT IN DECEDENTS NAME IF THERE IS NO WILL?

Surviving spouse and lineal descendants. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving a remainder interest of the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

DO FLORIDA PROBATE COURTS ENFORCE NO CONTEST CLAUSES of WILLS?

No. Florida probate law provides that a testator may not provide that a beneficiary loses their share of the Florida probate property that was provided for them if they contest the will in Florida Probate Court. A no contest clause can be put in a Florida will however pursuant to Florida statute 733.517 they are not enforceable. Since this law presumes it would not be good   policy to punish people for pursuing their rights Florida will contests are allowed and there are no penalties for seeking to obtain what one believes they are legally entitled to receive. A will   contest attorney can therefore be retained and pursue Florida estate litigation on a beneficiaries behalf without them being concerned that they will lose what they currently are entitled. The beneficiary however must state a valid legal cause of action for a Florida Will Contest. Merely not liking the terms of the will is not a valid cause of action.

WHAT ARE COMMON REASONS FOR FLORIDA WILL CONTESTS?

Some common reasons to for a Florida will contest would be if a beneficiary or heir felt that the testator lacked testamentary capacity at the time the will was executed. The testator must have testamentary capacity so they understand in a general way the approximate nature and extent of their property, those who would be the natural beneficiaries, and the practical effect of a will. The required mental capacity is judged at the time of execution of the will.

Undue influence is also a frequent reason for pursuing a Florida will contest and retaining a probate litigation attorney. To be considered undue influence, a person's mind must be so controlled or affected by persuasion or pressure, or by the influences of persons in close confidential relations with him or her, that he or she is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another. If undue influence is proven through a will contest it can reestablish the beneficiaries inheritance rights depending on the facts and circumstances of the case including prior wills and intestate succession law.

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. No action to contest the validity of a will may be taken prior to the death of the decedent as the will has no force or effect until the death of the testator. If you believe you have a reason to contest a will consult with a Florida estate attorney who can explain Florida law and how it would likely apply to the facts of your situation.

WHAT ARE SOME OTHER REASONS FOR ESTATE DISPUTES IN PROBATE COURT?

Other than the most frequent reasons for Florida Will Contests mentioned above other reasons for will contests and probate litigation also include the issues below:

• Issues re alleged breach of fiduciary duty of Personal Representatives including removal and surcharge actions.
• Claims of Forged Wills, Trusts or other estate related documents
• Florida will contests challenging whether the Florida will execution formalities were satisfied
• Abuse of power of attorney for property that should have been estate assets.
• Assets improperly taken from elderly or those lacking capacity.
• Disputes concerning appointment of personal representative typically for intestate estates
• Estate accounting or inventory objections
• Proof of heirship in estate involving intestate succession
• Elective share issues.
• Wrongful death probate litigation
• Will Construction to determine how the terms of the will should be applied to the estate.
• Litigation concerning creditor claims
• Allegations the Florida slayer statute should apply to a beneficiary or heir
• Large estates may have disputes concerning tax apportionment provisions of wills or trusts.
• Disputes concerning validity of pre nuptial agreement
• Joint Bank Account or Transfer on Death Disputes

DOES DIVORCE IMPACT A FLORIDA WILL?

The decedent’s surviving spouse and children may be entitled to receive assets from the decedent’s estate, even if the decedent’s will gives them nothing.

For example, if a decedent is survived by a surviving spouse or minor child there may be homestead rights to the property which prevent it from being devised through the will.

A surviving spouse may also have the right to pursue a claim to an elective share from the decedent’s estate. The Florida elective share is, generally speaking, 30% of all of the decedent’s assets, which includes any assets that are non-probate assets. This law was changed in 2001 which previously limited the elective share to probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the estate. A spouse may waive his or her rights to an elective share, family allowance and/or exempt property in a valid pre or post-marital agreement.In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s estate. A probate attorney can help explain the specific details of these laws and your rights based on your specific situation.

WHO SUPERVISES A FLORIDA PROBATE CASE?

A Florida Probate Case is supervised by a circuit court judge from the probate court in the circuit that the decedent was domiciled in (where some resides with present intent to remain). For example the probate of a decedent domiciled in Broward County would be supervised by a circuit court judge from the Broward County Probate Court. If a decedent were not domiciled in Florida but left real property in their sole name it would be supervised by the jurisdiction where the property was located. If a New York decedent owned a home in Boca Raton in their sole name the estate would be supervised by a Palm Beach County Probate Court judge. Who is a circuit judge in Palm Beach County.

IS A PROVISION IN A WILL NAMING A PARTICULAR ATTORNEY BINDING ON THE PERSONAL REPRESENTATIVE?

No, Florida law says the personal representative may select any Florida licensed attorney they want to help probate the estate. If the decedent saw an estate attorney to prepare a will they should have also been advised regarding how to avoid probate and likely not needed to go through the probate process. Finding a Florida probate attorney that is knowledgeable, accessible, and helpful will benefit the personal representative and provide direction with the estate administration.

The above is for general information only and is not legal advice for a specific set of facts.

If you or someone you know needs Florida Probate or Estate Administration help in Broward County including, Hollywood, Fort Lauderdale, Pembroke Pines, Plantation, Davie, Coral Springs, Parkland, Cooper City, Lighthouse Point or Coconut Creek, or Palm Beach County Probate Law help in Boca Raton, Jupiter, Palm Beach Gardens or North Palm Beach, Florida, from a Florida Probate Attorney or Estate Lawyer, call Attorney David Luber today at 866-685-0670, or complete the contact form provided on this site for a free consultation

Florida Probate Attorney Professional Profile

If you or someone you know needs the assistance of a Florida Probate Attorney, Florida Estate Administration Lawyer or help in the Hollywood - Fort Lauderdale area with Wills and Trusts call Attorney David Luber today at 866-685-0670 for a free consultation. He focuses on Broward County Law and Palm Beach County Probate Estates but also assists with some probate cases throughout the state.

ADDRESS OF THE FIRM:
David S. Luber, LLM
The Estate Planning Law Firm, P.A.
3475 Sheridan Street, Suite 212
Hollywood, FL 33021
Telephone: 866-685-0670
Fax: 866-809-4074

Attorney: David S. Luber

EDUCATION:

• Master of Laws in Estate Planning (Estate Planning LL.M.), University of Miami School of Law, Coral Gables
• J.D., Nova Law Center, Fort Lauderdale

JURISDICTIONS:

• Florida
• Illinois
• Arizona

PROFESSIONAL MEMBERSHIPS:

• Director and Past President of  North Dade South Broward Estate Planning Council
• Broward County Estate Planning Council
• Jewish Federation Professional Advisory Committee
• Broward County Bar Association Probate and Trust Section
• South Broward Bar Association
• Florida Bar Association
• Florida Bar Real Property Probate and Trust Section