Estate planning can help avoid problems for your family members after your death. It is important to understand Florida estate laws to ensure your will, or a trust, cannot be contested.
What Assets are Included in an Estate?
Whether you have a will, or a trust, any assets you own become part of your estate. There are exclusions; for example, property that is held in joint tenancy including real estate, checking accounts, or vehicles. Any property that is jointly held as tenants with rights of survivorship become the property of the joint owner at the time of the death of one owner. Assets held jointly are not part of the probate process.
Ownership of Life Insurance and Pension Plans
Typically, retirement accounts including IRA, 401(k), and other pension plans have a named beneficiary. In these cases, the assets in these accounts will be transferred to the named beneficiary once they have produced the documents required by the administrator of the account. These assets are not part of the probate process, unless there is no named beneficiary. Additionally, if a named beneficiary predeceases the owner of the account, the assets may revert to the estate, if there are no contingent beneficiaries named.
Florida Inheritance Law
Spouses always have a right to inherit property in Florida. Whether there is a will, or a trust the spouse’s rights to an inheritance is built into Florida statutes. Children, grandchildren, and other decedents are not guaranteed a share of an estate under Florida inheritance laws.
Child or Spouse Disinheritance
Florida does not allow no-contest clauses or more accurately such clauses are unenforceable. Florida Statute §732.517 states “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”
If a person prepares a will and wishes to exclude a child they must specify the child is to receive nothing, or a nominal amount. For spouses, there are protections under Florida inheritance laws that allow them the right to collect a certain percentage of the value of the decedent’s property, this is called an elective share. A spouse cannot be disinherited.
Contesting Lack of Inheritance
When you believe you should have inherited an asset, you may have the right to file a petition with the probate court. In these cases, it is best to speak with a probate attorney to ensure you have standing to file a suit.
Florida probate takes on various forms. Probate is different when there is no will, a will exists, there is a trust, or when the estate of a decedent is valued at less than $75,000. Here are some of the processes:
- No will — the court will name a personal representative (executor) to handle the affairs of the estate. The personal representative is responsible for notifying heirs, valuing property, paying taxes and debts of the estate, and filing a closing accounting statement.
- With a will — the personal representative of the estate is named in a will and the court validates the will and empowers the personal representative to deal with valuing, and distributing assets. The personal representative, is required to make certain notifications and pay estate debts.
- With a trust — upon the passing of a person who has a trust agreement, the successor trustee must notify the court of the death. The court then validates the trust and the trustee is then empowered to follow the terms of the trust.
- Small estate — when an estate is valued at less than $75,000 or the decedent has been dead for more than 2 years. The process of summary administration may be used, which allows for faster distribution of assets. Disposition of personal property without administration is another process that may be used for small estates that have only personal property and no real property. The personal property must be exempt from creditors or non-exempt personal property, which does not exceed the amount of funeral expenses and necessary medical expenses within 60 days prior to death.
Wills and Trusts in Florida
The best way to avoid issues with your estate is to have a will, or a trust in place. Preparing these documents should be done with the assistance of a skilled estate planning attorney.
Whether you are considering developing an estate plan, or you wish to contest a will, or you have other questions about Florida inheritance laws, contact the Jacksonville office of Judy-Ann Smith Law Firm, P.A.