I don’t get a whole lot of questions about probating Sparky or Mr. Wigglesworth but make no mistake, pets are considered personal property and theoretically could be subject to probate. Certainly Florida probate courts have encountered animals in probate, but domestic house pets are often overlooked.

The thing about pets, particularly dogs or cats, is that while animal registration is indicative of ownership, there isn’t a whole heck of alot of regulation regarding the sale or transfer of pets.  Ever buy a puppy from a breeder without papers?  You probably didn’t go out of your way to “title” the little bugger did you?

Unless the decedent had a prize winning line of Weimaraners and there’s a fight over who inherits the next litter, it’s unlikely probate would serve any real purpose.

As a dog lover myself, I hope that many of you are making arrangements, informal or otherwise, for the care of your pets in the event of your disability or death.

On the other hand, if you encounter pets of a decedent, please do everything in your power to find a suitable home.  If you can’t, please call the local branch of the Florida Humane Society.

There seems to be a pattern developping lately where clients (and tire kickers) are apparently paying creditors out of pocket – that is – they are making say, credit card payments on behalf of the decedent before probate has even started!

I can’t be sure if they were coerced by a collections agent or if they just feel some “moral” obligation (because until the estate is open, there is certainly no legal obligation.)

Let’s boil it down shall we?

Why you should probably pay the bill before probate is open:

1. You co-signed for the debt (personal loan, car note, mortgage)
2. It’s secured debt and the collateral is the house, car or some other asset you don’t want foreclosed or repossessed.
3. Electric bill to keep the lights on (so the fridge doesn’t shut off or the septic tank doesn’t back up before you probate the house.)
4. The debt is very small and eliminating it now will speed you through probate.
5. There is a gun firmly pressed against your temple.

Otherwise, don’t pay the bill!

You’ll have to deal with estate creditors once the probate has started anyway. Creditors’ claims can only be satisfied from non-exempt assets.

One last note:  A claim cannot be filed in an estate if the probate has not yet started!  << Read this again!

Bonus video (top right) is Dave Ramsey’s take on credit cards in general.  Has nothing to do with estate debt, just some straight talk about credit card debt.

Filing fees for probate matters just went up along with a host of other clerk’s fees throughout the 67 Florida Counties.

The increase took effect June 1, 2009.

The fees below are from the Martin County Clerk of Court’s website but are representative of the fee increases in all Florida counties.

Summary Administration-less than $1000:  $235.00
Summary Administration-$1000 or more: $345.00
Formal Administration $400.00

This amounts to a $115.00 increase for each type of administration.

Clerk’s fees saw it’s last increase back on July 1, 2008 (PDF of Martin County’s then posted fees) and chances are, some select fees will increase yet again on July 1, 2009.

Melissa Holsman covered the story for TCPalm.com:

Court clerks statewide opposed the new fees, she said, which were signed into law Wednesday by Gov. Charlie Crist.

Nearly all of cash generated from the new fees will go straight into state coffers.

“This money will not in any way benefit the clerks,” Ewing said. “It’s money that will be sent to the state.”

I have spent countless hours on any given week hearing about what the evil stepmother, wicked stepsister, deadbeat father and estranged spouse did to be undeserving of an inheritance.

My response has always been the same. “Tough cookies”

• Florida Probate law does not care if your sister never visited mom at the nursing home.
• Florida Probate law does not care if your homeless brother never helped pay taxes on dad’s vacant lot.
• Florida Probate law does not care if your dad married a golddigger who flew to Vegas the day after he died to find a new trust fund husband.

Call her cold, callous … even a bit harsh.  Lady justice will not be moved by your story or be persuaded to change or modify Florida probate laws, no matter how much more you think you deserve. (I didn’t write these laws!)

What’s that you say?

“But that’s the way mom would have wanted it!”

Prove it. Show me the Will. No, not the letter she wrote or the post-it note she scribbled on.   The properly executed and Florida compliant Last Will and Testament.

“It’s not about the money.  It’s about the principle.”

In that case, do you have the money to defend your principles? You’re going to needs lots of it!

In the probate world, there are only 2 ways to die:  Testate or Intestate.

If you die testate, then you died with a Will.  Intestate = No Will.

Without a Will, intestate laws kick in.

Trust me when I say that there is no Florida probate statute that discusses distributions for the “good” son.

Have I beat the horse dead yet?

Here’s my point: In probate administration, it should be very clear what each and every beneficiary is entilted to inherit, either according to the decedent’s Last Will and Testament or the Florida laws of intestacy.  If beneficiaries fight, prepare for litigation or at the very least, extraordinary attorneys’ fees which could have been avoided if everyone would just get on the same page.

It’s not the end of the world.  Get through probate amicably and then get on with your lives.

Note to those of you looking for a Florida Probate Lawyer:

If a fight is brewing, many attorneys will either see dollar $igns or will run from the chaos.  I do NOT take cases if the heirs are fighting. I don’t care for bickering heirs.  Please get on the same page and play nice or find a Florida probate litigation attorney and prepare to spend 5 figures just to get the case moving.

If you need inspiration to play nice, check out the video at the top left of this page!

If you’re ready for a painless and affordable probate experience, make nice with the other heirs and then, contact me!

While Florida probate administration may have many parallels to administration in other states, there are certainly some unique requirements and customs that are unique to Florida. For example, many states have a proceeding refererred to as “small estate administration” while Florida’s rough equivalent is called “summary administration.” In some states, small estate administration is often confused with small estate affidavits (which are legally distinct from actual administration.)

In order to determine if an estate is eligible for small estate administration or a simple small estate affidavit depends on the type of assets and whether or not they exceed a specified threshhold value. Florida’s summary administration generally requires that either non-exempt assets do not exceed $75,000 or that more than 2 years have passed since date of death. Furthermore, attorney involvement is almost always required. To be clear, Florida does not have a procedure called “small estate administration.”

One of the most frequent questions I field goes something like this:

“The bank needs Letters of Administration or Letters Testamentary in order to release the money. How do I get these Letters?”

The short answer is “formal administration,” a process that takes a minimum of 6 months and averages 9-12 months.

My knee jerk reaction to this question is always: “Are you sure you need Letters of Administration?”

Very often, Letters of Administration (often referred to as Letters Testamentary in other states) are wholly unnecessary – and because you can only secure such Letters in formal administration (a longer, costlier process), you may be subjecting yourself to a process which we jokingly refer to as “probate overkill.”

Banks have manuals, policies and guidelines that can make accessing funds of the deceased rather difficult. While this may seem like an unnecessary imposition, it’s understandable that the bank is trying to shield iteself from any liabilities.

My point is, bank employees don’t always know what they need. Letters of Administration may be necessary, but in smaller estates (>75,000), formal administration can be “probate overkill.” I don’t blame them – they aren’t exepected to understand probate law.

They are simply referencing what the policy manuals and customer service wikis (a computer database that helps employees find answers to common questions) tell them to say whenever a customer says:

“Mom died and I need to access her checking account so I can pay for her funeral.”

All the bank tell heard was “mom died.” (followed by a suppressed panic attack)

In an instant, a manual or database is accessed to determine how to deal with bank accounts when the owner has died. The manual probably says “persistently ask for Letters of Administration or a court order until the heirs stop bugging you.” Humorous and annoying at the same time, the reality is that bankers, bank tellers, financial brokerage and life insurance representatives do not understand probate, much less Florida probate!

Bottom line: Letters of Administration are only issued in Florida’s formal administration process (formal probate) and in many cases, summary administration orders are sufficient to distribute bank funds. Let your attorney make this determination before you jump to any conclusions on the kind of court documents that you need.

Medicaid Claims in Florida Probate Administration

I’m sure you’ve heard of Medicaid – or is it Medicare? It’s easy to confuse them.

Medicare is health insurance for senior citizens who have worked and paid into their Medicare during their careers. If you are employed, your paycheck is reduced a bit each time and put towards your Medicare.

Medicaid is basically health insurance for people who fall below certain income and asset levels. If a person applies and successfully secures Medicaid coverage, then receives health care services (doctor visits, hospital visits, nursing home care), Medicaid will likely pick up the tab.

That doesn’t mean it’s FREE!

What the heck does this have to do with Florida Probate?

Medicaid is a “class 3″ creditor. If you are going to move forward with probate in Florida, it is important to find out if the decedent ever applied for or received Medicaid benefits.

Not only will Medicaid file a claim, but Florida Statutes require that a petitioner or personal representative of an estate put Medicaid (Agency for Health Care Administration) directly on notice, if the decedent was 55 or older.

So if Medicaid files a claim against the estate, it will be a prioirity creditor and will be satisfied before all lower class claims (credit cards, etc.)

Does that mean you’ll lose mom’s house to a $100,000 Medicaid claim.

Nope. A person’s homestead is protected from creditors – including Medicaid.

Does that mean mom’s $2,000 checking account is at risk?

Maybe. There are other ways to recapture certain assets.

You see, there’s a pecking order on who gets paid first. There are ways to properly exempt assets before creditors swoop in and take them all. (It’s a rather long list, but it’s worth chatting about. )

99.99% of the time, the answer is yes.

Generally speaking, a personal representative must have attorney representation before the probate courts in Florida.

“But it’s a simple estate! Just a house and a checking account!”

Sorry, that’s not the criteria for a “simple estate” and it certainly
doesn’t lay the groundwork for rules requiring representation.

Here’s the primary rule:

Every guardian and every personal representative, unless the personal representative remains the sole interested
person, shall be represented by an attorney admitted to practice in Florida.

I know what some of you are thinking…

“Well, I am the sole beneficiary, so I must be able to represent myself.”

You may very well be the sole beneficiary but you are probably not the sole interested person. Interested persons may
include all sorts of people or entities, but the primary concern here are creditors.

“Well, we paid off all the credit cards, so we’re good right?”

Did you pay off Medicaid? Medicaid is a “class 3″ creditor which basically means they are up there on the list of people who
must be paid before any beneficiary takes their share of the estate. Medicaid must be notified if the decedent was 55 or older.

I could go on and on, but here’s the bigger picture:

We have taken no less than 20+ cases in the last year for clients who tried to start Summary Administration themselves. They had
convinced themselves it was easy enough to do that it was “just a few forms.” Of course until they had to provide the
appropriate proposed orders to the judge. Others didn’t know that there was a “proof of will” process required. Still
others didnt’ realize that the court clerks don’t give legal advice.

If a court clerk overlooks the fact that you dont’ have an undersigning attorney on your paperwork, you might get your foot in the
door. But the consequences of starting a process you’re not sure how to finish can be brutal – and the clerks won’t help you one
bit. Don’t blame them – they aren’t allowed to give advice.

And if the estate is NOT eligible for Summary Administration, don’t even think about going it alone. You won’t even get
past the clerks in Formal Administration.

One last thing to note: Petitioners, Executors and Personal Representatives are held personally liable
for their actions during the administration of probate. This is not an arena you want to dabble in simply because you’ve found a few
forms online.

You certainly don’t have to hire us, but please…hire an attorney to get it done right from the start.

Still not convinced? Have a look at the Florida Probate Rules.

Florida Probate Rules

Not exactly related to Florida probate, but there is a message here:

If you’re inheriting a house that has a mortgage, beware the “foreclosure rescue scam” or the “loan modification scam”.

Note: We do not handle foreclosure defense cases, though we do handle probate cases for properties facing foreclosure.

It’s simply disgusting what the scum of the earth will do to dupe people out of their hard earned money:

A little known fact about Florida probate law is that if more than 2 years have passed since the date of death, virtually all creditors claims are barred! Yes, barred – meaning, no can do.

Though there are rare ocassions where claims can be enforced, it is simply that … rare.

What does this mean to a probate petitioner?

1. A Notice to Creditors need not be published (saving anywhere from $100 to $300 on publication costs).

2. Summary Administration is generally available (short form probate).

3. No waiting 90 days for the creditor period to expire before assets are distributed.

Please don’t misunderstand. There are plenty of reasons to pursue probate even if it has been less than 2 years since the date of death, but the 2 year rule is always a welcome situation.

Sometimes, browsing a website for information can be time consuming. So we’re making it just a bit easier for everyone.

We just finished preparing our FREE Florida Probate ebook for anyone who is faced with the possibility of probate (that means you!)

Our book is filled with information with answers to questions such as:

… “What the heck is Summary Administration?”
… “Why do I need an attorney?”
… “What is considered personal property?”
… “Do I really have to go through Formal Administration?”
… “Will probate prevent me from selling the house?”
… and much much more!

It’s a completely free download, and as an added bonus, you’ll get periodic tips on how to manage your own estate assets, learn about new issues and trends in Florida probate and much much more.

Give me my book!

Of course you can always just fill out our call back form and an attorney will call you back to discuss your case!